State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 5, 2015 105801 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ROBERT S. FISHER,

Appellant.

________________________________

Calendar Date: January 9, 2015

Before: McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.

__________

Stacey L. Gorman, Ballston Spa, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Jason M.

Carusone of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the County Court of Warren County

(Hall Jr., J.), rendered September 23, 2008, upon a verdict

convicting defendant of the crimes of course of sexual conduct

against a child in the first degree, incest in the first degree,

rape in the second degree, incest in the second degree,

endangering the welfare of a child and sexual abuse in the second

degree (two counts).

In April 2008, defendant was charged in a multi-count

indictment with various sex crimes stemming from his ongoing

sexual relationship with victim A (born in 1995) between August

2007 and January 2008, as well as an encounter with victim B

(also born in 1995) that occurred in January 2008. Specifically,

defendant was charged with course of sexual conduct against a
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child in the first degree (victim A), incest in the first degree

(victim A), rape in the second degree (victim A), incest in the

second degree (victim A), endangering the welfare of a child

(victim A) and two counts of sexual abuse in the second degree

(victim B). In response to questioning by State Police,

defendant gave a detailed written statement, wherein he

recounted, among other things, the progression of his physical

relationship with victim A – a person to whom defendant knew he

was related – from touching to oral sex to repeated acts of

sexual intercourse over the course of many months. Defendant's

subsequent motion to suppress this statement was denied, and the

matter proceeded to trial. After hearing the testimony offered

by, among others, victims A and B, the jury found defendant

guilty of all charges. County Court thereafter sentenced

defendant to concurrent terms of imprisonment, including – with

respect to defendant's conviction of course of sexual conduct

against a child in the first degree – 20 years in prison followed

by 20 years of postrelease supervision. This appeal by defendant

ensued.

Defendant initially contends that County Court erred in

failing to suppress the written statement he gave to State Police

investigators in January 2008. We disagree. "The People bore

the burden of proving the voluntariness of defendant's

statement[] beyond a reasonable doubt, including that any

custodial interrogation was preceded by the administration and

defendant's knowing waiver of his Miranda rights. Determining

whether a statement is voluntary is a factual issue governed by

the totality of the circumstances [and] [t]he credibility

assessments of the suppression court in making that determination

are entitled to deference" (People v Mattis, 108 AD3d 872, 874

[2013], lvs denied 22 NY3d 957 [2013] [internal quotation marks

and citations omitted]).

Here, the State Police investigator who ultimately took

defendant's statement testified that, prior to questioning

defendant at the barracks, he advised defendant of his Miranda

rights; in response, defendant indicated that he understood his

rights and was willing to speak with the investigator. The

investigator then questioned defendant for approximately 21⁄2

hours, during the course of which the investigator utilized his
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laptop to type defendant's written statement. When completed,

the printed statement was presented to defendant for his review. 

In conjunction therewith, the investigator testified, he again

read the Miranda warnings out loud to defendant and asked

defendant to initial each line of the warnings if he understood;

defendant then initialed each line. Additionally, in order to

ensure that defendant could read, the investigator asked

defendant to recite the first line of the statement, which

defendant did without difficulty. Following this, defendant was

asked to review, sign and initial each page of the statement. 

The investigator testified that, when defendant came to the final

page of the statement, he asked to make a correction; defendant

then drew a line through a small portion of his statement and

initialed that change.

Although defendant denied being apprised of his Miranda

warnings, contended that the investigator had already prepared a

written statement for him to sign prior to any questioning taking

place, insisted that he did not read the written statement,

claimed that he was not paying attention when the investigator

read portions of the statement to him and testified that he

signed/initialed the written statement only because he was

instructed to do so, this conflicting testimony presented a

credibility issue for County Court to resolve (see People v

Marshall, 65 AD3d 710, 711 [2009], lv denied 13 NY3d 940 [2010]). 

Notably, defendant's insistence that he was not involved in the

preparation of his written statement and did not pay any

attention to the final product is belied by the statement itself

– a document that defendant signed four times, initialed no fewer

than 21 times and, as noted previously, made a correction

thereto. Accordingly, we discern no basis upon which to disturb

County Court's ruling in this regard.

Defendant next contends that the verdict convicting him of

each of the underlying crimes is against the weight of the

evidence. Again, we do not agree. As a starting point, to the

extent that the charged crimes contained specific age

requirements for the victims and/or defendant (see Penal Law §§

130.30 [1]; 130.35 [4]; 130.50 [4]; 130.60 [2]; 130.75 [1] [b];

255.26; 255.27), the information contained in defendant's

redacted written statement, which was admitted into evidence at
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trial, together with the testimony of victim A, her mother and

victim B, was sufficient to satisfy the age elements embodied in

the crimes at issue. Similarly, the evidence at trial

established that defendant was aware that he was related to

victim A to the degree required by the incest statutes (see Penal

Law §§ 255.26, 255.27).

With respect to the specific charges, victim A testified,

in detail and at length, that defendant began having sex with her

in late August 2007 or early September 2007 – a point in time

when victim A was 12 years old. Victim A testified as to the

progression of the relationship – from touching to oral sex to

sexual intercourse – and described both the locations and the

frequency with which such acts took place. Although noting that

defendant had intercourse with her "basically almost every chance

he got," victim A testified as to specific incidents of oral sex

and/or sexual intercourse that occurred between late 2007 and

early 2008, including Halloween, Thanksgiving, Christmas Eve and

her birthday. Victim A's mother confirmed that victim A was with

defendant on the holidays in question, and defendant's own

statement reflects that he "had sex with [victim A] about 20

separate times" between late summer and October 2007, in addition

to one act of sexual intercourse in January 2008. Upon

consideration of this evidence, and granting deference to the

jury's credibility determinations, we are satisfied that the jury

accorded the evidence the weight that it deserved. Accordingly,

we find no basis upon which to disturb defendant's conviction as

to the crimes charged with respect to victim A – specifically,

course of sexual conduct against a child in the first degree,

incest in the first degree, rape in the second degree, incest in

the second degree and endangering the welfare of a child.

We reach a similar conclusion as to the two counts of

sexual abuse in the second degree charged with respect to victim

B, which required the People to prove that defendant engaged in

sexual contact – defined as "any touching of the sexual or other

intimate parts of a person for the purpose of gratifying sexual

desire of either party" (Penal Law § 130.00 [3]) – with victim B

(see Penal Law § 130.60 [2]). Both victim A and victim B

recounted an incident that occurred during a sleepover with

victim A in January 2008 wherein defendant expressed a desire to
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have a "threesome" with them. Victim B testified that she

initially thought that defendant was kidding, but that defendant

thereafter grabbed her between her legs stating, "[I'll] be

getting some of that later." In an effort to stall for time,

victim B told defendant that she would not do anything with him

without a condom. Victim A, victim B and defendant then went to

a local grocery store to make that purchase. Upon returning from

the store, victim A, victim B and defendant proceeded to a

bedroom in the residence, at which time – victim B testified – 

defendant engaged in sexual contact with her within the meaning

of the subject statute. Crediting the testimony offered by

victims A and B, as well as the admissions made by defendant in

his written statement, we are satisfied that the jury accorded

such evidence the weight that it deserved.

Defendant's remaining contentions do not warrant extended

discussion. To the extent that County Court erred in admitting

into evidence reference to an uncharged act of sexual intercourse

that occurred with victim A in Saratoga County, in light of the

overwhelming evidence of defendant's guilt, we deem any error in

this regard to be harmless (see People v Arafet, 13 NY3d 460, 467

2009]; People v Raucci, 109 AD3d 109, 120-121 [2013], lv denied

22 NY3d 1158 [2014]). As for defendant's claim that he was

denied the right to counsel of his choosing, we cannot say that

County Court abused its discretion in denying defendant's eve-oftrial request for an adjournment in order retain a new attorney. 

Nor do we find merit to defendant's ineffective assistance of

counsel claim. To the extent that defendant faults trial counsel

for failing to secure his testimony at the grand jury proceeding,

sufficiently confer with him prior to trial, adequately prepare

for the suppression hearing and/or engage in sufficient pretrial

motion practice, these claims involve matters outside of the

record and, as such, are more properly the subject of a CPL

article 440 motion (see People v Green, 119 AD3d 23, 31 [2014],

lv denied 23 NY3d 1062 [2014]; People v Toye, 107 AD3d 1149, 1152

[2013], lv denied 22 NY3d 1091 [2014]; People v Stroman, 106 AD3d

1268, 1271 [2013], lv denied 21 NY3d 1046 [2013]). As to the

balance of defendant's claim, the record reflects that trial

counsel "engaged in relevant motion practice, presented

appropriate opening and closing statements, effectively crossexamined the People's witnesses and registered appropriate
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objections" (People v Cade, 110 AD3d 1238, 1242 [2013], lv denied

22 NY3d 1155 [2014]). Hence, we are satisfied that defendant

received meaningful representation (see People v Green, 119 AD3d

at 31; People v Cade, 110 AD3d at 1242; People v Toye, 107 AD3d

at 1152). Defendant's remaining arguments, including his

assertion that the sentence imposed is harsh and excessive, have

been examined and found to be lacking in merit.

McCarthy, J.P., Rose and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court