SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

971 

KA 11-00648 

PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

GARRETT WALKER, DEFENDANT-APPELLANT. 

 

MILLER, WEINER & ASSOCIATES, P.C., KINGSTON (CAPPY WEINER OF COUNSEL),

FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (John L.

Michalski, A.J.), rendered August 5, 2010. The judgment convicted

defendant, upon a jury verdict, of sexual abuse in the first degree

and endangering the welfare of a child. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him, following

a jury trial, of sexual abuse in the first degree (Penal Law § 130.65

[3]) and endangering the welfare of a child (§ 260.10 [1]), defendant

contends that Supreme Court erred in refusing to suppress both initial

oral statements and subsequent written statements that he made to the

police. We reject that contention. With respect to the oral

statements, we conclude that the court properly determined that

defendant was not in custody at the time he made those statements (see

generally People v Morales, 65 NY2d 997, 998). Indeed, the record of

the suppression hearing establishes that a reasonable person, innocent

of any crime, would not have believed that he or she was in custody

during that time, given the circumstances of the initial interrogation

(see generally People v Yukl, 25 NY2d 585, 589, cert denied 400 US

851; People v Andrews, 13 AD3d 1143, 1144).

Nor is there merit to defendant’s contention that the Miranda

warnings administered prior to his subsequent written statements were

ineffective because his interrogation constituted a continuous chain

of events. Given our agreement with the court that the initial oral

statements to the police were not the subject of custodial

interrogation, it cannot be said that the subsequent written

statements were the result of a continuation of “custodial”

interrogation. 
-2- 971 

KA 11-00648 

We further conclude that the court did not err in refusing

defendant’s request to allow defendant to present the testimony of a

false confessions expert. It is well established that the

admissibility of expert testimony is addressed primarily to the sound

discretion of the trial court (see People v Cronin, 60 NY2d 430, 433),

and here we conclude that the court properly determined that the

expert did not possess a professional or technical knowledge that was

beyond the ken of the average juror (see People v Hicks, 2 NY3d 750). 

Finally, we conclude that the court properly denied defendant’s motion

for a subpoena duces tecum seeking the victim’s counseling records. 

The reason proferred by defendant for the motion was speculative, and

thus “the quest for [the file’s] contents [was] merely a desperate

grasping at a straw” (People v Gissendanner, 48 NY2d 543, 550).

Entered: September 30, 2011 Patricia L. Morgan

Clerk of the Court