                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   106105
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

SHAWN M. STOCUM,
                    Appellant.
________________________________


Calendar Date:   September 12, 2016

Before:   Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.

                             __________


     Francisco P. Berry, Ithaca, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Damian M.
Sonsire of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered November 5, 2012, upon a verdict
convicting defendant of the crimes of incest in the third degree,
rape in the third degree (two counts) and criminal sexual act in
the third degree (four counts).

      In December 2011, the underage victim disclosed to
authorities that defendant had sexually abused her over the
course of several months. State Police investigators approached
defendant at his workplace as part of their inquiry into the
allegations and, after being Mirandized and agreeing to speak to
them, defendant admitted that he had engaged in various sex acts
with the victim. He was then transported back to the State
Police barracks and he gave a written statement to the same
effect.
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      An indictment was subsequently handed up that charged
defendant with numerous offenses related to abuse occurring from
July 2011 to November 2011. Defendant moved to suppress his oral
and written statements to investigators and, following a hearing,
County Court denied that motion. A jury trial ensued, at the end
of which defendant was convicted of incest in the third degree,
rape in the third degree (two counts) and criminal sexual act in
the third degree (four counts). County Court sentenced defendant
to an aggregate prison term of 12 years, to be followed by a
period of postrelease supervision. Defendant now appeals.

      Defendant first argues that his oral and written statements
to investigators should have been suppressed due to the role his
intellectual disabilities played in his decision to speak to
investigators. In dealing with a person with intellectual
disabilities, "close scrutiny must be made of the circumstances
of the asserted waiver" of his or her Miranda rights (People v
Williams, 62 NY2d 285, 289 [1984]; see People v Comfort, 6 AD3d
871, 873 [2004]). Inasmuch as defendant's claimed impairments
did not render him "completely incapable of understanding the
meaning and effect of his confession" (People v Williams, 62 NY2d
at 289 [internal quotation marks and citations omitted]), the
circumstances most worthy of scrutiny involve whether defendant
had the "ability 'to grasp the basic concepts that he could
refuse to talk to the investigator or that he could ask to speak
to a lawyer' and that any statement might be used to his
disadvantage" (People v Marx, 305 AD2d 726, 728 [2003], lv denied
100 NY2d 596 [2003], quoting People v Ferguson, 285 AD2d 901, 902
[2001], lv denied 96 NY2d 939 [2001]; see People v Comfort, 6
AD3d at 873).

      State Police Investigator Eric Hurd testified that he and
another investigator encountered defendant at his place of
employment and that Hurd administered Miranda warnings to
defendant one or two minutes after meeting him. Defendant had no
questions about his rights, instead telling Hurd that he
understood his rights and wished to speak to the investigators.
He soon made incriminating statements and was taken into custody,
after which he was questioned by Hurd for an hour at the State
Police barracks. Defendant did not object to the further
questioning, nor did he request a lawyer. The questioning
                              -3-                106105

culminated in a written statement typed by Hurd and a second set
of Miranda warnings, which were read aloud to defendant, then
initialed and signed by him to reflect his understanding and
waiver of his rights. Hurd read the entire statement aloud as
well after defendant admitted that he had trouble reading and
writing and, after defendant demonstrated his own reading ability
by reading a few sentences of the statement aloud, he silently
read the rest and executed it. Hurd further stated that, aside
from the remark regarding defendant's reading ability, he had no
reason to believe that defendant had any intellectual impairment.
The foregoing indicates that defendant was capable of
understanding his rights and knowingly waived them, and defendant
provided little to suggest the contrary (see People v Rizvi, 126
AD3d 1172, 1173 [2015], lv denied 25 NY3d 1076 [2015]; People v
Marx, 305 AD2d at 728).1 Accordingly, after considering the
totality of the circumstances and deferring to the credibility
determinations of County Court, we perceive no abuse of
discretion in its suppression ruling (see People v DeAngelo, 136
AD3d 1119, 1120 [2016]; People v Comfort, 6 AD3d at 873; People v
Marx, 305 AD2d at 728).

      The verdict was not, contrary to defendant's further
contention, against the weight of the evidence. The victim (born
in 1995) testified that defendant (born in 1978), a close
relative, began grooming her for an inappropriate relationship by
giving her gifts and compliments, encouraging her to move in with
him and stating that they were "dating." She either lived with
or routinely visited defendant from July 2011 through November
2011, and she testified that the two engaged in multiple
instances of oral, anal and vaginal sex during that period. The
victim disclosed the abuse shortly after visiting defendant on
Thanksgiving weekend of that year. Defendant likewise admitted,
in his written statement to Hurd, that he had engaged in numerous
acts of oral, anal and vaginal sex with the victim beginning in
the spring of 2011. The victim's account of events was open to


    1
        Defendant now endeavors to do so with evidence that was
not presented at the suppression hearing, but "the propriety of
the denial [of his motion] must be judged on the evidence before
the suppression court" (People v Gonzalez, 55 NY2d 720, 722
[1981], cert denied 456 US 1010 [1982]).
                              -4-                106105

question in some respects, and the precise number of occasions
that defendant subjected the victim to oral, anal and vaginal sex
was unclear.2 Nevertheless, after viewing the evidence in a
neutral light and giving deference to the jury's credibility
assessments, we find that the weight of the evidence supported
the verdict in all respects (see People v Scaringe, 137 AD3d
1409, 1414-1416 [2016], lv denied 28 NY3d 936 [2016]; People v
Sapienza, 75 AD3d 768, 769 [2010]).

      We are unpersuaded by defendant's additional argument that
the aggregate prison sentence imposed by County Court was harsh
and excessive, but another sentencing issue requires our
attention. County Court directed that some of defendant's prison
terms run consecutively but, because the attendant periods of
postrelease supervision merge by operation of law (see Penal Law
§ 70.45 [5] [c]; People v Thorpe, 141 AD3d 927, 928 n 1 [2016]),
defendant is only subject to a 10-year term of postrelease
supervision. County Court said nothing to the contrary during
sentencing, but the People assert in their brief on appeal that
defendant is subject to 30 years of postrelease supervision, as
does a document annexed to the uniform sentence and commitment
form that details the aggregate sentence (compare People v Hayes,
104 AD3d 1050, 1055 [2013], lv denied 22 NY3d 1041 [2013], with
People v Dukes, 14 AD3d 732, 733 [2005], lv denied 4 NY3d 885


    2
        County Court recognized this problem, but also noted that
the proof was consistent in showing at least two incidents each
of oral, anal and vaginal sex during the relevant period. County
Court accordingly dismissed, with the agreement of the parties,
all but two counts of rape in the third degree, two counts of
criminal sexual act in the third degree alleging anal sexual
conduct and two counts of criminal sexual act in the third degree
alleging oral sexual conduct. Defendant now claims that County
Court selected an "arbitrary" number of those counts to submit to
the jury but, inasmuch as defendant consented to that step, his
claim is unpreserved (see People v Van Ness, 43 AD3d 553, 554
[2007], lv denied 9 NY3d 965 [2007]; People v Bruce A., 141 AD2d
736, 736-737 [1988], lv denied 72 NY2d 954 [1988]). Moreover,
after reviewing the trial evidence, we perceive no reason to take
corrective action on this issue in the interest of justice (see
People v Van Ness, 43 AD3d at 554).
                              -5-                  106105

[2005]). While the judgment is not impaired by this confusion,
it does require remittal so that an amended uniform sentence and
commitment form may be issued that reflects the correct term of
postrelease supervision (see People v Butler, 134 AD3d 1349, 1350
[2015], lvs denied 27 NY3d 962, 963 [2016]; cf. People v Dukes,
14 AD3d at 733).

     Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur.



      ORDERED that the judgment is affirmed, and matter remitted
for entry of an amended uniform sentence and commitment form.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
