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

1023
KA 12-01870
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                  OPINION AND ORDER

ROBERT M. KNAPP, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CHARLES MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered September 25, 2012. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree, criminal
sexual act in the first degree (four counts), aggravated sexual abuse
in the third degree, sexual abuse in the first degree (three counts)
and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, that part of the omnibus motion
seeking to suppress defendant’s statements is granted, counts 1, 2, 3,
12, 13, 14 and 17 of the indictment are dismissed, and a new trial is
granted on counts 4, 5 and 18 of the indictment.

     Opinion by PERADOTTO, J.: In appeal No. 1, defendant appeals from
a judgment convicting him upon a jury verdict of, inter alia, rape in
the first degree (Penal Law § 130.35 [3]) and, in appeal No. 2, he
appeals from a judgment convicting him upon a jury verdict of
endangering the welfare of a child (§ 260.10 [1]). Defendant contends
in both appeals that County Court erred in refusing to suppress his
confession on two grounds, i.e., that he did not knowingly,
voluntarily, and intelligently waive his Miranda rights because he
lacked the capacity to do so, and because his intellectual
limitations, combined with coercive police tactics, rendered his
statements involuntary. We agree.

                                  I

     In the fall of 2008, defendant, an “intellectually handicapped”
man with an IQ of 68, moved into a trailer owned by his childhood
friend and occupied by the friend and her two children. According to
the friend, during the two years in which he lived there, defendant
“seemed like part of the family” and was “really close” with the
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children. On October 26, 2010, however, the friend (hereafter,
mother) walked into defendant’s portion of the trailer and found her
three-year-old daughter standing with her pants down a few feet away
from defendant. Defendant was sitting on his bed in his boxer shorts
with a sheet or blanket partially covering his lap. The mother asked
the child why her pants were down, and she replied that defendant had
touched her “tu-tu,” the child’s term for her vagina. The mother
called 911.

     The police responded to the trailer and, after speaking with the
mother and the child, located the defendant on a farm where he
apparently worked “doing hay.” Defendant agreed to accompany the
police to the station, stopping first at the trailer, where defendant
consented to a search of his living quarters. At the station, a
detective read defendant the Miranda warnings, and he waived his
rights and agreed to speak to the police. Defendant initially denied
that anything happened between him and the child. He ultimately
admitted, however, that he had engaged in several sexual acts with the
child on a regular basis beginning in September 2010.

     By indictment No. 2011-073 (hereafter, first indictment),
defendant was charged with 18 counts of sexual misconduct against the
child (identified as M.A.). The first five counts of the indictment
(counts 1-5) charged defendant with rape in the first degree (Penal
Law § 130.35 [3]), criminal sexual act in the first degree (two
counts) (§ 130.50 [3]), aggravated sexual abuse in the third degree (§
130.66 [1] [c]), and sexual abuse in the first degree (§ 130.65 [3]),
all based upon the October 26, 2010 incident. The indictment alleged
that, on that date, defendant engaged in sexual intercourse with M.A.,
placed his mouth on her vagina, put his penis in her mouth, inserted a
foreign object (a medicine dropper) into her vagina, and touched her
vagina. The next six counts of the indictment (counts 6-11) charged
defendant with rape in the first degree based on conduct allegedly
occurring on a weekly basis beginning the week of September 12, 2010
and ending the week of October 17, 2010. Defendant was also charged
with two counts of criminal sexual act in the first degree (oral
sexual conduct) and one count of sexual abuse in the first degree
(vaginal touching) based on alleged incidents occurring between
October 1 and 25, 2010 (counts 12-14), as well as two counts of
criminal sexual act in the first degree (oral sexual contact) and one
count of sexual abuse in the first degree (vaginal touching) based on
alleged incidents occurring between September 8 and September 30, 2010
(counts 15-17). Finally, defendant was charged with endangering the
welfare of a child (§ 260.10 [1]) (count 18) by subjecting M.A. to
sexual contact between September 2009 and October 2010.

     M.A.’s brother, J.A., then four, and their cousin, C.S., then
six, thereafter made disclosures to the police. By indictment No.
2011-145 (hereafter, second indictment), defendant was charged with
course of sexual conduct against a child in the second degree (Penal
Law § 130.80 [1] [a]) and endangering the welfare of a child (§ 260.10
[1]) based on the allegation that he engaged in two or more acts of
sexual conduct with C.S. and “repeatedly subjected her to sexual
contact” between October 2008 and October 2010 (counts 1 and 2).
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Counts 3-5 charged defendant with sexual abuse in the first degree (§
130.65 [3]) (two counts) and endangering the welfare of a child (§
260.10 [1]) based upon allegations that between January 2010 and
October 2010, defendant touched J.A.’s penis and buttocks. The two
indictments were consolidated over defendant’s objection.

     Defendant thereafter moved to suppress his statement to the
police on the grounds that he lacked the capacity to knowingly and
intelligently waive his Miranda rights, and that his mental
limitations, combined with the police interrogation tactics, rendered
his confession involuntary. Defendant submitted the report of a
forensic psychologist who examined defendant on two dates in June
2011, took his history, reviewed the videotape of the interrogation,
and performed a number of psychological tests. The defense expert
opined that defendant was “not capable of intelligently waiving his
Miranda [r]ights” due to his “cognitive and abstracting deficits,” and
that he was “a suggestible and overly compliant individual, . . .
causing him to be easily intimidated by the interrogation process.”

     At the Huntley hearing, the People presented the expert testimony
of a forensic psychiatrist who interviewed defendant in jail and
reviewed the videotape of his confession. The People’s expert
acknowledged that defendant was “intellectually handicapped,” with a
full-scale IQ of 68, but concluded that defendant was “not that
retarded” and could understand his Miranda rights. The defense expert
testified that defendant’s IQ placed him in the “mentally retarded
range of intellectual functioning.” Defendant’s verbal IQ was 63,
which placed him in the first percentile, meaning that he performed
worse than 99% of the test population. Based upon defendant’s “very
poor” level of verbal functioning, the defense expert opined that,
although defendant was “able to understand the words of the Miranda
rights,” he was “not capable of intelligently waiving” those rights.
He further opined that defendant was “a very suggestible and very
compliant man as is not atypical of persons who are mentally
retarded,” which placed him at risk of falsely confessing.

     The court denied defendant’s motion, concluding that defendant
knowingly, voluntarily, and intelligently waived his Miranda rights.
The court determined that, although defendant “has impaired
intelligence and limited verbal comprehension ability,” there was “no
evidence of mental retardation so great as to render [him] completely
incapable of understanding the meaning and effect of the confession.”
The court further determined that the police conduct “did not overbear
the defendant’s will or . . . undermine his ability to make a choice
whether or not to make a statement.”

     By its verdict, the jury convicted defendant of rape in the first
degree (Penal Law § 130.35 [3]), criminal sexual act in the first
degree (four counts) (§ 130.50 [3]), aggravated sexual abuse in the
third degree (§ 130.66 [1] [c]), sexual abuse in the first degree
(three counts) (§ 130.65 [3]), and endangering the welfare of a child
(§ 260.10 [1]) as charged in counts 1-5, 12-14, and 17-18 of the first
indictment. The jury also convicted defendant of endangering the
welfare of a child (§ 260.10 [1]) as charged in count 2 of the second
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                                                         KA 12-01870

indictment.   Defendant now appeals.

                                   II

     It is well established that, “[f]or a statement to be admissible,
the People must prove a voluntary, knowing, and intelligent waiver of
the privilege against self-incrimination” (People v Aveni, 100 AD3d
228, 236, appeal dismissed 22 NY3d 1114; see People v Rodney, 85 NY2d
289, 292; People v Williams, 62 NY2d 285, 288). “Whether a defendant
knowingly and intelligently waived his or her rights to remain silent
and to an attorney is determined upon an inquiry into the totality of
the circumstances surrounding the interrogation” (People v Santos, 112
AD3d 757, 758, lv denied 22 NY3d 1158 [internal quotation marks
omitted]; see Williams, 62 NY2d at 288), including the defendant’s
“age, experience, education, background, and intelligence, and . . .
whether he [or she] has the capacity to understand the warnings given
him [or her], the nature of his [or her] Fifth Amendment rights, and
the consequences of waiving those rights” (Fare v Michael C., 442 US
707, 725, reh denied 444 US 887).

     Where a “person of subnormal intelligence” is involved, “close
scrutiny must be made of the circumstances of the asserted waiver”
(Williams, 62 NY2d at 289). “A defendant’s mental deficiency weighs
against the admissibility of an elicited confession, so that any such
confession must be measured by the degree of the defendant’s awareness
of the nature of the rights being abandoned and the consequences of
the decision to abandon them” (People v Dunn, 195 AD2d 240, 242, affd
18 NY2d 956). A suspect of “subnormal intelligence” may effectively
waive his or her Miranda rights “so long as it is established that he
or she understood the immediate meaning of the warnings” (Williams, 62
NY2d at 287), i.e., “how the Miranda rights affected the custodial
interrogation” (id. at 289). It must therefore be shown that the
suspect “grasped that he or she did not have to speak to the
interrogator; that any statement might be used to the subject’s
disadvantage; and that an attorney’s assistance would be provided upon
request, at any time, and before questioning is continued. What will
suffice to meet this burden will vary from one case to the next”
(id.).

     In addition to establishing the validity of a defendant’s waiver
of his or her Miranda rights, it is also “the People’s burden to prove
beyond a reasonable doubt that statements of a defendant they intend
to rely upon at trial are voluntary” (People v Thomas, 22 NY3d 629,
641; see People v Guilford, 21 NY3d 205, 208). “[C]onvictions
following the admission into evidence of confessions which are
involuntary, i.e., the product of coercion, either physical or
psychological, cannot stand” (Rogers v Richmond, 365 US 534, 540).
Like the determination of whether a defendant effectively waived his
or her privilege against self-incrimination, proof of voluntariness
compatible with due process “takes into consideration ‘the totality of
all the surrounding circumstances—both the characteristics of the
accused and the details of the interrogation’ ” (Dickerson v United
States, 530 US 428, 434 [emphasis added]; see Guilford, 21 NY3d at
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                                                         KA 12-01870

208). The critical question is “ ‘whether a defendant’s will was
overborne’ by the circumstances surrounding the giving of a
confession” (Dickerson, 530 US at 434), which “ ‘depend[s] upon a
weighing of the circumstances of pressure against the power of
resistance of the person confessing’ ” (id.; see Thomas, 22 NY3d at
642 [the voluntariness of a statement “depend[s] upon the facts of
each case, both as they bear upon the means employed and the
vulnerability of the declarant” (emphasis added)]). Thus, the
voluntariness inquiry “is not limited to instances in which the claim
is that the police conduct was ‘inherently coercive’ ” (Miller v
Fenton, 474 US 104, 110). Rather, it “applies equally when the
interrogation techniques were improper only because, in the particular
circumstances of the case, the confession is unlikely to have been the
product of a free and rational will” (id. [emphasis added]).

                                 III

     We turn first to defendant’s contention that the People failed to
establish beyond a reasonable doubt that he knowingly, voluntarily,
and intelligently waived his rights to remain silent and to an
attorney. The record establishes and, indeed, it is undisputed, that
defendant has significant cognitive deficits. Defendant was
classified as “mentally retarded” in school, and graduated with an
Individualized Education Program diploma. The defense expert
testified at the Huntley hearing that defendant received a full-scale
IQ score of 68 on the Wechsler Adult Intelligence Scale-IV (WAIS-IV),
compared to an average score of 100, which placed him in the
“[e]xtremely [l]ow range of intellectual functioning” and classified
him as “[m]entally retarded” (see Atkins v Virginia, 536 US 304, 309 n
5 [describing an IQ below 75 as within the range of mental
retardation]). Defendant’s IQ placed him in the second percentile,
meaning that he “scored lower than did 98% of the people his age who
were administered the WAIS-III during its development.”
Significantly, defendant received a verbal comprehension IQ score of
63, indicating a “very, very low, very poor” level of verbal
functioning. The defense expert testified at the Huntley hearing that
defendant read at a second- or third-grade level, which he described
at trial as “what we know as Dick and Jane ran up the hill, that kind
of stuff.” He estimated that defendant’s “comprehension of the words
would be considerably lower than the third grade.”

     The defense expert also administered several tests that were
specifically designed to assess defendant’s understanding and
appreciation of the Miranda warnings. The defense expert testified
that defendant’s performance on those tests indicated that he “would
have difficulty intelligently assessing [and] weighing the
circumstances that he’s involved in at a particular time.” Defendant
scored “very poorly,” i.e., in the second percentile, on the Function
of Rights in Interrogation test. According to the defense expert,
that meant that, although defendant understood the individual words
used in the Miranda warnings, he was unable to comprehend the import
of the warnings or to “intelligently weigh the consequences” of
waiving his rights. The defense expert thus opined that, because of
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defendant’s “cognitive and abstracting deficits,” he “was not capable
of intelligently waiving his Miranda rights” (see Fare, 442 US at 725;
Dunn, 195 AD2d at 242-243).

     The People’s expert, who admitted at trial that he had “limited
experience in dealing with people with mental retardation,” did not
dispute defendant’s IQ score or take issue with the specific tests
administered by the defense expert. Indeed, he characterized the
defense expert’s report as “well balanced.” He concluded, however,
that defendant was “not that retarded.” The People’s expert noted
that defendant “knew that there were seven days in a week” and that,
although defendant thought that there were six months in a year, he
was able to name all of the months. The People’s expert did not
assess defendant’s reading ability or comprehension. The People’s
expert concluded that, because the Miranda rights “are fairly simple
[and] straightforward,” defendant was “able to understand the rights
when they were read to him.” His conclusion was primarily based upon
the belief that defendant was “able to function” in the activities of
daily living, including personal hygiene, driving and handling his SSI
funds. According to the People’s expert, defendant

          “could live alone. He had a girlfriend. He’s
          been deemed able to handle his own funds. He
          could buy a truck. He could buy insurance for the
          truck. So, from my point of view and in talking
          to him, it was my feeling that, that he could
          understand the rights.”

     There is no evidence in the record, however, that defendant was
able to live alone or that he had lived alone at any point in his
life. Indeed, the record reflects that defendant lived with his
parents into adulthood and that, after their death, he lived with
other relatives and friends. There is likewise no evidence that
defendant “had a girlfriend.” Defendant told the police that he had
never had a girlfriend, and the record contains no evidence to the
contrary. Finally, there is no evidence that defendant was “deemed”
or “found” competent by the Social Security Administration to handle
his own funds; in that respect, the record establishes only that
defendant was the payee on his SSI checks.

     Of equal importance was the manner in which the rights were
administered to defendant. The defense expert, who reviewed the
videotape of the interrogation, noted that the Miranda warnings “were
read to [defendant] in a relatively rapid fashion which likely only
further confused him given his mental retardation.” Our review of the
videotape confirms that characterization. In delivering the Miranda
warnings, the detective recited each of the rights at a fairly rapid
pace, particularly as compared to the pace of the remainder of the
interview. The detective then handed defendant a waiver of rights
form with defendant’s responses already filled in and asked defendant
to place his initials next to each of the rights. Significantly, the
detective never asked defendant whether he could read or write, and
did not inquire about defendant’s level of education. The defense
expert concluded that defendant “could not read his [Miranda] [r]ights
                                 -7-                          1023
                                                         KA 12-01870

on his own because of his 3rd grade reading level.” Indeed, even the
People’s expert acknowledged that the detective “didn’t spend a lot of
time dwelling on the Miranda rights.”

     This case is thus distinguishable from Williams (62 NY2d at 287),
in which the Court of Appeals concluded that a 20-year-old
“functionally illiterate, borderline mentally retarded man”
effectively waived his Miranda rights. The Court noted that “the
detective who administered the Miranda warnings did not restrict
himself to a mere reading of the rights from a card, as is usually
done by police officers. Instead, the officer described the rights in
more detail and simpler language, verifying that defendant understood
each right before proceeding to the next warning” (id. at 288; see id.
at 289 [“(T)o an individual of subnormal intelligence, stating the
Miranda warnings in sophisticated terms would be as incomprehensible
as though they were spoken in a foreign language . . . (T)he detective
here was careful to reduce the warnings to simple terms that defendant
could understand”]). No such precautions were taken in this case
despite the clear indications, discernible on our review of the
videotape, that defendant’s intellectual ability was limited.

     We therefore conclude, based upon the totality of the
circumstances, that the People failed to meet their burden of
establishing beyond a reasonable doubt that defendant knowingly,
voluntarily, and intelligently waived his Miranda rights, and thus
that the court should have suppressed defendant’s confession on that
ground (see Santos, 112 AD3d at 757-759; Aveni, 100 AD3d at 237).

                                  IV

     In addition to his Miranda contention, defendant contends that
the People failed to meet their “heavy burden” of proving the
voluntariness of defendant’s statements beyond a reasonable doubt
(People v Holland, 48 NY2d 861, 862; see Thomas, 22 NY3d at 641;
Guilford, 21 NY3d at 208), and thus that the court should have
suppressed his confession on that ground as well (see Thomas, 22 NY3d
at 636). “[B]efore and apart from Miranda, courts have long held that
a person’s limited intellectual ability bears appreciably on the
voluntariness of the person’s response to interrogation” (Dunn, 195
AD2d at 243). People with intellectual disabilities are particularly
“vulnerab[le] and susceptib[le] to overreaching” by law enforcement
(id. at 244; see Colorado v Connelly, 479 US 157, 165 [“(M)ental
condition is surely relevant to an individual’s susceptibility to
police coercion”]; United States v Preston, 751 F3d 1008, 1020 [noting
that reduced mental capacity may render a suspect “ ‘more susceptible
to subtle forms of coercion’ ”]), and are “more likely to give false
confessions” (Hall v Florida, ___ US ___, ___, 134 S Ct 1986, 1993;
see Preston, 751 F3d at 1018 n 13 [noting “abundant research that the
intellectually disabled ‘are more likely to confess falsely for a
variety of reasons’ ”]). Thus, “ ‘[o]fficial conduct that does not
constitute impermissible coercion when employed with nondisabled
persons may impair the voluntariness of the statements of persons who
are mentally ill or mentally retarded’ ” (Preston, 751 F3d at 1016-
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1017; see Stein v New York, 346 US 156, 185, reh denied 346 US 842
[“What would be overpowering to the weak of will or mind might be
utterly ineffective against an experienced criminal”]).

     Here, the defense expert opined that defendant is “a suggestible
and overly compliant individual, which is not unusual in mentally
retarded individuals who are frequently ‘yea-saying,’ in turn causing
him to be easily intimidated by the interrogation process” (see
Preston, 751 F3d at 1022 [“These traits–being ‘easily confused,’
‘highly suggestible and easy to manipulate’–are consistent with
characteristics of the intellectually disabled in general”]). The
People’s expert acknowledged that “people with an IQ of 68 certainly
can be suggestible and can have a need to be compliant.” According to
the defense expert, individuals who are “yea-sayers” are more likely
to agree with a statement if repeatedly asked; thus, prodding or
intensive questioning will tend to elicit an affirmative response. In
addition to noting his own clinical impressions, the defense expert
administered tests specifically designed to measure interrogative
susceptibility and compliance, i.e., the “Gudjonsson scales.” On the
suggestibility scale, defendant scored a 15, which is “higher than the
normative data provided for adults, court referrals, and persons with
intellectual disabilities, whose average ‘total suggestibility’ scores
were 7.5, 10.9 [and] 12.5 respectively.” Defendant also scored a 15
on the compliance scale, much higher than the average score of 9 and
higher than “the average score for false confessors,” i.e., 14.4.
According to the defense expert, a person with a score of 15 on the
compliance scale would be particularly sensitive to threats and
promises made during interrogation. He thus opined, based upon his
interview and the test results, that defendant “falls within the
parameters of a person who is in danger of false confessions.”

     We have reviewed the videotape of the interrogation and are
therefore “ ‘not consigned to an evaluation of a cold record, or
limited to reliance on the detectives’ testimony’ ” (Preston, 751 F3d
at 1020). Our review confirms the defense expert’s observation that
the detective “used techniques that are popularly used in convincing
someone to answer questions in a particular way.” Specifically, the
detective “tried to appear to be a friendly soul, a good cop that
might do something to help [defendant] if he gave the correct answer.”
The detective told defendant that he “knew he wasn’t a bad guy”; asked
defendant whether he was “an evil man” or “a guy that has a problem
that we need to try and fix”; and told defendant “[y]ou don’t want
people to think that you’re an evil person . . . I might be able to
help you” (see id. at 1023-1024 [concluding that the confession of an
intellectually-disabled defendant was involuntarily given where, among
other things, the police asked defendant “to choose . . . whether he
was a monster–a sexual predator who repeatedly preys on children–or if
the abuse of the child was a one-time occurrence”]). Most of the
detective’s questions were leading in nature, and he repeated a
question when he was not satisfied with defendant’s response, urging
defendant to “be honest” with him and to tell the truth (see id. at
1024 [“(W)hen presented with leading or suggestive questions,” people
with intellectual disabilities “ ‘frequently seek to conform to the
perceived desires of the interrogator’ ”]; Wilson v Lawrence County,
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260 F3d 946, 953 [confession involuntary where, inter alia, “the
officers relied largely on leading questions to secure th[e]
confession”]). Notably, the People’s expert testified at trial that,
when interviewing a suggestible subject, it is important not to ask
leading questions “[b]ecause they will think that’s what [you] want to
hear and people are liable to say yes or be agreeable, so forth.”

     As the defense expert testified at trial, “[w]hat became very
clear in the video . . . was that [defendant] changed his answers
based on the kind of questioning that was done to him. In other
words, he was asked the question, the same question over and over
again. So it no doubt became clear to him that he was answering the
wrong way. So he changed his answers to be what he believed the cop
wanted to know.” Many, although not all, of defendant’s responses
consisted of “mmm-hmm,” yes, and a parroting back of the detective’s
statements. The detective also told defendant that he had spoken to
the victim and her mother, that the victim was “not lying,” and that
the medical examination was going to show that “something happened”
between defendant and the victim. The defense expert testified that
such tactics “would lead [defendant] to question his own memory of the
situation which isn’t good to begin with. He’s got deficits in
memory. So if presented with memory that would counteract what he
believed to be true, he would change his answer.”

     We therefore conclude, based upon the totality of the
circumstances, including defendant’s intellectual limitations, his
suggestibility and compliance tendencies, and the tactics employed by
the interviewer in this case, that defendant’s confession was not
voluntary and thus that it should have been suppressed on that ground
as well (see Preston, 751 F3d at 1027-1028; see generally Dickerson,
530 US at 434; Miller, 474 US at 110; Thomas, 22 NY3d at 642). Thus,
we conclude that the judgment should be reversed, defendant’s
confession suppressed, and a new trial granted (see People v Cotton,
280 AD2d 188, 193, lv denied 96 NY2d 827).

                                  V

     Defendant further contends that his conviction is not supported
by legally sufficient evidence and that the verdict is against the
weight of the evidence. We agree in part. Because there was no
evidence, other than defendant’s confession, that the crimes charged
in counts 12, 13, 14 and 17 of the first indictment “were, in fact,
committed” (People v Whitney, 105 AD2d 1111, 1112; see People v Chico,
90 NY2d 585, 589-590), we agree with defendant that those counts must
be dismissed (see People v Maldonado, 40 AD3d 436, 436; Whitney, 105
AD2d at 1112). We further agree with defendant that the verdict with
respect to counts 1, 2, and 3 of the first indictment is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495), and we therefore dismiss those counts as well. Although the
physical evidence establishes that defendant ejaculated and that some
of the ejaculate ended up on the victim’s shirt, no sperm or seminal
fluid was detected on any of the samples taken from the victim’s body.
Further, the victim’s sexual assault examination was “normal,” with
“no tears, notches, tags, [or] bruises” detected on the hymen.
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Contrary to the contention of defendant, we conclude that his
conviction of the remaining counts in the two indictments is supported
by legally sufficient evidence, and that the verdict with respect to
those counts is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495). In light of our determination that
defendant is entitled to a new trial based upon the improper admission
of his confession, we do not reach defendant’s remaining contentions.

                                  VI

     Accordingly, we conclude that the judgment in appeal No. 1 should
be reversed, that part of the omnibus motion seeking to suppress
defendant’s statements granted, counts 1, 2, 3, 12, 13, 14 and 17 of
the first indictment dismissed, and a new trial on counts 4, 5 and 18
in the first indictment granted. We likewise conclude that the
judgment in appeal No. 2 should be reversed, that part of the omnibus
motion seeking to suppress defendant’s statements granted, and a new
trial on count 2 of the second indictment granted.




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
