                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   107199
________________________________

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

JUANITO VAZQUEZ,
                    Appellant.
________________________________


Calendar Date:   October 12, 2016

Before:   Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.

                             __________


     Francisco P. Berry, Ithaca, for appellant.

      Kirk O. Martin, District Attorney, Owego (Palmer J. Pelella
of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from a judgment of the County Court of Tioga County
(Keene, J.), rendered February 21, 2014, upon a verdict
convicting defendant of the crimes of rape in the first degree
and endangering the welfare of a child.

      Defendant was indicted for the crimes of rape in the first
degree, criminal sexual act in the first degree and endangering
the welfare of a child. Following a jury trial, defendant was
found guilty of rape in the first degree and endangering the
welfare of a child, but the jury could not reach a unanimous
verdict on the count of criminal sexual act in the first degree,
and, prior to sentencing, the court dismissed that count of the
indictment. Defendant's motion to set aside the verdict was
denied and he was sentenced to a prison term of seven years with
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10 years of postrelease supervision.   Defendant now appeals.   We
affirm.

      Defendant initially contends that County Court's pretrial
Huntley ruling, which denied his motion to suppress incriminating
statements that he made to an investigator of the Tioga County
Sheriff's Department, was in error because defendant did not
knowingly and intelligently waive his Miranda rights. Where "a
defendant has been advised of his [or her] Miranda rights and
within minutes thereafter willingly answers questions during
interrogation, 'no other indication prior to the commencement of
interrogation is necessary to support a conclusion that the
defendant implicitly waived those rights'" (People v Goncalves,
288 AD2d 883, 884 [2001], lv denied 97 NY2d 729 [2002], quoting
People v Sirno, 76 NY2d 967, 968 [1990]). The testimony at the
Huntley hearing shows that defendant agreed to accompany the
investigator to the Sheriff's Department to be interviewed.
Defendant testified that his requests for a lawyer were ignored,
he was not given Miranda warnings at any point and he was not
asked to sign a form waiving his Miranda rights. Defendant also
testified that he had learned English from watching television.
In contrast to defendant's version of the interview, the
investigator testified that he read defendant his Miranda rights
at the Sheriff's Department using a standard form, and, while
defendant did not want to sign the form, he indicated that he
understood what had been read to him and subsequently stated, "I
will talk to you." The investigator also testified that
defendant never asked for a lawyer and that, while the interview
was progressing, he prepared a written statement based on
defendant's statements – detailing that defendant had engaged in
sexual intercourse with the victim a number of times in the
victim's bed – and that defendant freely and voluntarily signed
it.

      Although defendant's version of the events differed from
that provided by the investigator, County Court found the
testimony of the investigator to be credible and that no language
barrier prevented defendant from voluntarily waiving his Miranda
rights and making his written statement. "Determining whether a
statement is voluntary is a factual issue governed by the
totality of the circumstances[,] and the credibility assessments
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of the suppression court in making that determination are
entitled to deference" (People v Mattis, 108 AD3d 872, 874 [2013]
[internal quotation marks, brackets and citations omitted], lvs
denied 22 NY3d 957 [2013]; see People v Hunter, 270 AD2d 712, 713
[2000]). The court determined that defendant's claims that he
did not receive Miranda warnings and that the investigator
ignored his request for counsel were not credible. Since County
Court "had the advantage of observing the demeanor of the
witnesses" (People v Hunter, 270 AD2d at 713), its factual
determinations "are entitled to great weight and will not be
disturbed unless clearly erroneous" (People v Comfort, 6 AD3d
871, 873 [2004], quoting People v Burns, 281 AD2d 704, 705
[2001], lvs denied 96 NY2d 826, 831 [2001]). On the record
before us, we find that County Court's pretrial Huntley ruling
denying defendant's motion to suppress his written statement is
supported by the record (see People v Comfort, 6 AD3d at 873).

      Defendant also claims that County Court erred in denying
his motion to set aside the verdict because the court gave an
improper Allen charge. "[A] court may give a deadlock charge
that encourages a verdict after the jurors have expressed that
they are at an impasse, so long as the charge does not coerce
them to reach a particular verdict" (People v Guerrier, 46 AD3d
937, 938 [2007], lv denied 9 NY3d 1034 [2008]). Here, during
jury deliberations, the jury informed County Court that, while it
was able to reach a verdict on the count of endangering the
welfare of a child, it could not reach a unanimous verdict on the
counts of rape in the first degree or criminal sexual act in the
first degree. The court confirmed the verdict on the one count,
and, upon agreement by both parties, gave the jury an Allen
charge. The court read a standard Allen charge to the jury and,
at the end of the charge, added: "I would like you to deliberate
the case a little bit further. We are not going to have you come
back here tomorrow. If you can't reach a decision today, then we
will declare a hung jury with regard to the other two counts that
you have not been able to make a decision on." Eventually, the
jury reached a verdict on the count of rape in the first degree,
but remained divided on the count of criminal sexual act in the
first degree. The court took a second partial verdict and the
jury found defendant guilty of rape in the first degree.
                              -4-                107199

      Specifically, defendant argues that County Court's
statement to the jury, that "[w]e are not going to have you come
back here tomorrow," added to the standard Allen charge, created
a time restraint that pressured the jury into making a rushed
decision and a forced verdict. The fact that the jury continued
to deliberate for a few hours after the Allen charge and did not
reach a verdict on the count of criminal sexual act in the first
degree indicates, in our view, that the court's statement did not
have an undue effect on the jury. Accordingly, County Court did
not err when it denied defendant's motion to set aside the
verdict based on the Allen charge (see People v Guerrier, 46 AD3d
at 938-939).

      Lastly, we find no merit in defendant's contention that
County Court improperly assumed the role of advocate for the
People by asking the nurse practitioner a number of questions
regarding medical evidence not mentioned in direct examination or
cross-examination at trial. "A court may not . . . assume the
advocacy role traditionally reserved for counsel" (People v
Arnold, 98 NY2d 63, 68 [2002]), but "'is permitted to raise
matters on its own initiative in order to elicit significant
facts, clarify or enlighten an issue or to facilitate the orderly
and expeditious progress of the trial'" (People v Lupo, 92 AD3d
1136, 1138 [2012], quoting People v Tucker, 140 AD2d 887, 891
[1998], lv denied 72 NY2d 913 [1988]). In denying defendant's
motion to set aside the verdict, County Court found that its
questioning of the nurse practitioner was limited, reasonable and
did not suggest any partiality, bias or hostility since the nurse
practitioner agreed with defense counsel on re-cross-examination
that her court-elicited testimony "doesn't tell anything in this
case" and had "no significance" here. Thus, there is no support
in the record that the court's questioning improperly interfered
with the proceeding or created a tactical advantage for the
People (see People v Lupo, 92 AD3d at 1138). As such, we find
that County Court did not err when it denied defendant's motion
to set aside the verdict based on the court's questioning of the
nurse practitioner.

     Peters, P.J., McCarthy, Lynch and Rose, JJ., concur.
                        -5-                  107199

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
