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

1368
KA 12-00763
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONALD HUGHES, DEFENDANT-APPELLANT.


FRANK POLICELLI, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered February 29, 2012. The judgment convicted
defendant, upon a jury verdict, of attempted criminal sexual act in
the first degree, sexual abuse in the first degree (three counts) and
course of sexual conduct against a child in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the period of postrelease
supervision imposed on the first count of the indictment to a period
of 15 years and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of one count each of attempted criminal sexual act
in the first degree (Penal Law §§ 110.00, 130.50 [4]) and course of
sexual conduct against a child in the second degree (§ 130.80 [1]
[b]), and three counts of sexual abuse in the first degree (§ 130.65
[3]). Defendant contends that County Court erred in refusing to
suppress his statement to the police on the ground that he gave the
statement involuntarily. We reject that contention. A statement “is
‘involuntarily made’ when it is obtained by [the police] by means of
any promise or statement of fact which creates a substantial risk that
the defendant might falsely incriminate himself” (People v Mateo, 2
NY3d 383, 413, cert denied 542 US 946). “To determine voluntariness,
courts review all of the surrounding circumstances to see whether the
defendant’s will has been overborne” (id.; see People v Collins, 106
AD3d 1544, 1545, lv denied 21 NY3d 1072).

     Here, the evidence at the Huntley hearing, including the
videotaped interrogations, establishes that defendant’s statement was
voluntarily made and that coercive police activity did not occur (see
Mateo, 2 NY3d at 414). The fact that defendant was told that he
failed a polygraph examination did not render the statement
involuntary (see People v Ellis, 73 AD3d 1433, 1434, lv denied 15 NY3d
                                 -2-                          1368
                                                         KA 12-00763

851; People v Melendez, 149 AD2d 918, 918-919). Defendant’s claim
that he was under duress and confused because of an illness is not
supported by the evidence at the Huntley hearing. In arguing
otherwise, defendant improperly relies on his testimony at trial (see
People v McCurty [appeal No. 2], 60 AD3d 1406, 1407, lv denied 12 NY3d
856).

     We conclude that the sentence is illegal insofar as it imposes a
20-year period of postrelease supervision for attempted criminal
sexual act in the first degree (see Penal Law § 70.45 [2-a] [e]).
“ ‘Although [that] issue was not raised before the [sentencing] court
or on appeal, we cannot allow an [illegal] sentence to stand’ ”
(People v Davis, 37 AD3d 1179, 1180, lv denied 8 NY3d 983). We
therefore modify the judgment by reducing the period of postrelease
supervision on the first count of the indictment to a period of 15
years. The sentence as modified is not unduly harsh or severe.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
