        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

971
KA 11-00648
PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GARRETT WALKER, DEFENDANT-APPELLANT.


MILLER, WEINER & ASSOCIATES, P.C., KINGSTON (CAPPY WEINER OF COUNSEL),
FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered August 5, 2010. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, following
a jury trial, of sexual abuse in the first degree (Penal Law § 130.65
[3]) and endangering the welfare of a child (§ 260.10 [1]), defendant
contends that Supreme Court erred in refusing to suppress both initial
oral statements and subsequent written statements that he made to the
police. We reject that contention. With respect to the oral
statements, we conclude that the court properly determined that
defendant was not in custody at the time he made those statements (see
generally People v Morales, 65 NY2d 997, 998). Indeed, the record of
the suppression hearing establishes that a reasonable person, innocent
of any crime, would not have believed that he or she was in custody
during that time, given the circumstances of the initial interrogation
(see generally People v Yukl, 25 NY2d 585, 589, cert denied 400 US
851; People v Andrews, 13 AD3d 1143, 1144).

     Nor is there merit to defendant’s contention that the Miranda
warnings administered prior to his subsequent written statements were
ineffective because his interrogation constituted a continuous chain
of events. Given our agreement with the court that the initial oral
statements to the police were not the subject of custodial
interrogation, it cannot be said that the subsequent written
statements were the result of a continuation of “custodial”
interrogation.
                                 -2-                           971
                                                         KA 11-00648

     We further conclude that the court did not err in refusing
defendant’s request to allow defendant to present the testimony of a
false confessions expert. It is well established that the
admissibility of expert testimony is addressed primarily to the sound
discretion of the trial court (see People v Cronin, 60 NY2d 430, 433),
and here we conclude that the court properly determined that the
expert did not possess a professional or technical knowledge that was
beyond the ken of the average juror (see People v Hicks, 2 NY3d 750).
Finally, we conclude that the court properly denied defendant’s motion
for a subpoena duces tecum seeking the victim’s counseling records.
The reason proferred by defendant for the motion was speculative, and
thus “the quest for [the file’s] contents [was] merely a desperate
grasping at a straw” (People v Gissendanner, 48 NY2d 543, 550).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
