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

611
KA 12-00137
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                MEMORANDUM AND ORDER

ZORAIDA Y. FIGUEROA-NORSE, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered January 17, 2012. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree and
endangering the welfare of a child.

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

     Memorandum: Defendant appeals from a judgment convicting her
following a jury trial of assault in the second degree (Penal Law ' 120.05
[8]) and endangering the welfare of a child (' 260.10 [1]) based on
life-threatening injuries she caused to her then eight-year-old foster
child. The victim sustained a head injury that rendered her unconscious
and required surgery to relieve pressure on her brain. She was in a coma
for approximately one month and, at the time of trial, suffered paralysis
on the left side of her body as a result of the injury. In addition,
the victim sustained an injury to her abdomen that resulted in perforation
of her digestive system and also required surgery. Due to the nature
of her head injury, the victim could not recall how she was injured.
Defendant was arrested after her brother informed the police that she
had assaulted the child at his home.

     Defendant contends that County Court erred in refusing to suppress
statements she made to the deputy sheriff who questioned her at the hospital
where the victim was taken. According to defendant, her statements were
involuntary because they were not preceded by Miranda warnings. We reject
that contention. AIn determining whether a defendant was in custody for
Miranda purposes, >[t]he test is not what the defendant thought, but rather
what a reasonable [person], innocent of any crime, would have thought
had he [or she] been in the defendant=s position= @ (People v Kelley, 91
AD3d 1318, 1318, lv denied 19 NY3d 963, quoting People v Yukl, 25 NY2d
585, 589, cert denied 400 US 851). Here, defendant was not restrained
in any way, nor was she told that she had to answer the deputy sheriff=s
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                                                              KA 12-00137

questions. Although defendant was with the deputy sheriff at the hospital
for approximately 10 hours, the questioning was not continuous, and
defendant was given multiple breaks to use the bathroom and obtain
beverages. Defendant declined an offer of food and had contact by cell
phone with her brother and mother. At one point, defendant left the
hospital on her own to retrieve items from her vehicle, and then returned
to the hospital for further questioning. Moreover, the record of the
Huntley hearing establishes that the questioning was investigatory rather
than accusatory in nature (see People v Smielecki, 77 AD3d 1420, 1421,
lv denied 15 NY3d 956; People v Murphy, 43 AD3d 1276, 1277, lv denied
9 NY3d 1008). Finally, defendant did not make any admissions and was
allowed to go home after the interview was completed. Under the
circumstances, we conclude that Aa reasonable person in defendant=s
position, innocent of any crime, would not have believed that he or she
was in custody, and thus Miranda warnings were not required@ during the
interview (People v Lunderman, 19 AD3d 1067, 1068, lv denied 5 NY3d 830;
see People v Jones, 110 AD3d 1484, 1485, lv denied 22 NY3d 1157; People
v Zuke, 87 AD3d 1290, 1291, lv denied 18 NY3d 887).

     We likewise reject defendant=s contention that the statements were
involuntary within the meaning of CPL 60.45 (2) because her will was
overborne by the length of the questioning and promises made to her by
the deputy sheriff. Defendant was not coerced by the use or threatened
use of physical force, and, even assuming, arguendo, that the deputy
sheriff promised defendant that she could talk to the victim=s surgeon
if she cooperated with the police, as defendant testified at the Huntley
hearing, we conclude that such promise did not create Aa substantial risk
that the defendant might falsely incriminate [herself]@ (CPL 60.45 [2]
[b] [i]). Indeed, as noted, defendant did not incriminate herself during
the interview, and she was not arrested until five days later.

     Defendant contends that she was deprived of her right to a proper
jury because a prospective juror did not serve on the jury despite not
having been struck or challenged. Because defendant did not object to
the failure of that prospective juror to be seated on the jury, however,
she failed to preserve that contention for our review (see People v Hayes,
71 AD3d 1477, lv denied 15 NY3d 751), and we decline to exercise our power
to review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). We note in any event that we perceive
no prejudice to defendant arising from the failure of the prospective
juror to be seated. As the Court of Appeals explained in a different
context, A[e]ven if a juror is wrongly but not arbitrarily excused, the
worst the court will have done in most cases is to have replaced one
impartial juror with another impartial juror@ (People v Culhane, 33 NY2d
90, 108 n 3; see People v Arnold, 96 NY2d 358, 362).

     Defendant also failed to preserve for our review her contention that
the court should have removed a seated juror who the court noticed had
Anodded off@ during the preliminary instructions and opening statements
(see CPL 470.05 [2]). The court learned from the juror during a discussion
at the bench that she was tired due to her diabetes medication, and the
court decided to adjourn the trial until the next morning to allow the
juror to get a good night=s sleep. Although present for the discussion
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                                                               KA 12-00137

at the bench with the juror, defense counsel did not object to the court=s
course of action or request that the juror be removed as Agrossly
unqualified@ (CPL 270.35 [1]). We note that there is no indication in
the record that the juror missed any of the evidence presented at trial,
and we decline to exercise our power to review defendant=s contention as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).

      We reject defendant=s contention that the evidence is legally
insufficient to support the conviction. Viewing the evidence in the light
most favorable to the People, as we must (see People v Contes, 60 NY2d
620, 621), we conclude that A >there is a valid line of reasoning and
permissible inferences from which a rational jury could have found the
elements of the crime[s] proved beyond a reasonable doubt= @ (People v
Danielson, 9 NY3d 342, 349; see generally People v Bleakley, 69 NY2d 490,
495). Defendant=s brother testified that he observed defendant strike
the victim in the face between five and seven times on the day in question.
 According to defendant=s brother, the victim then ran from the house
bleeding from the nose and mouth, and defendant later carried the victim
back inside and placed her in the basement as a form of Atimeout.@ When
defendant=s brother checked on the victim approximately 20 minutes later,
the victim was unconscious. Contrary to defendant=s contention, her
brother=s testimony was not Aincredible as a matter of law,@ i.e.,
A >unbelievable as a matter of law, manifestly untrue, physically
impossible, contrary to experience, or self-contradictory= @ (People v
Bush, 107 AD3d 1581, 1582, lv denied 22 NY3d 954; see People v Harris,
56 AD3d 1267, 1268, lv denied 11 NY3d 925). We note in addition that
defendant admitted at trial that she lied to the deputy sheriff when she
said that the victim had fallen out of her arms and landed on the driveway,
and that she told the same lie to several other people, including the
victim=s paternal grandfather, the victim=s psychologist, and a social
worker whom defendant phoned while driving the victim to the hospital.
 Defendant also admittedly lied when she told numerous people that the
victim consumed some type of rancid liquid and had been vomiting all day.


     Viewing the evidence in light of the elements of the crimes as charged
to the jury (see Danielson, 9 NY3d at 349), we further conclude that the
verdict is not against the weight of the evidence (see generally Bleakley,
69 NY2d at 495). Although a different verdict would not have been
unreasonable, it cannot be said that the jury failed to give the evidence
the weight it should be accorded (see generally id.). The jury was
entitled to credit the testimony of defendant=s brother over that of
defendant, and we afford great deference to the jury=s credibility
determinations. A[T]hose who see and hear the witnesses can assess their
credibility and reliability in a manner that is far superior to that of
reviewing judges who must rely on the printed record@ (People v Lane,
7 NY3d 888, 890; see People v Roberts, 111 AD3d 1308, 1309, lv denied
23 NY3d 967; People v Allen, 93 AD3d 1144, 1147, lv denied 19 NY3d 956).

     Even assuming, arguendo, that we agree with defendant that the court
erred in denying her request to admit in evidence a statement given to
the police by a neighbor of defendant=s brother who had died prior to trial
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                                                             KA 12-00137

(see generally People v Robinson, 89 NY2d 648, 652-653), we conclude that
such error is harmless. The proof of guilt is overwhelming, and there
is no reasonable possibility that defendant would have been acquitted
if the statement had been admitted (see generally People v Crimmins, 36
NY2d 230, 237).

     We have reviewed defendant=s remaining contentions and conclude that
they lack merit.




Entered:   August 8, 2014                        Frances E. Cafarell
                                                 Clerk of the Court
