SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1079 

KA 09-02633 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JOHN BROWN, DEFENDANT-APPELLANT. 

 

JEANNIE D. MICHALSKI, PUBLIC DEFENDER, GENESEO, FOR

DEFENDANT-APPELLANT. 

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Livingston County Court (Dennis S.

Cohen, J.), rendered September 10, 2009. The judgment convicted

defendant, upon a jury verdict, of rape in the second degree, sexual

abuse in the second 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 upon a jury

verdict of rape in the second degree (Penal Law § 130.30 [1]), sexual

abuse in the second degree (§ 130.60 [2]), and endangering the welfare

of a child (§ 260.10 [1]), defendant contends that County Court erred

in refusing to suppress the statements that he made to the police. 

Defendant’s specific contentions are that, contrary to the court’s

conclusion, he was in custody, that the statements were the result of

coercion and intimidation by the police sergeant who questioned him,

and that he did not understand the import of the Miranda warnings

provided by the police sergeant. We reject those contentions. 

“In determining whether a defendant was in custody for Miranda

purposes, ‘[t]he test is not what the defendant thought, but rather

what a reasonable [person], innocent of any crime, would have thought

had he [or she] been in the defendant’s position’ ” (People v Kelley,

91 AD3d 1318, 1318, lv denied 19 NY3d 963, quoting People v Yukl, 25

NY2d 585, 589, cert denied 400 US 851). Here, the record establishes

that defendant voluntarily drove himself to the police station, was

not handcuffed, was permitted to leave the police station to smoke a

cigarette, and was not subjected to lengthy, coercive or accusatory

questioning (see People v Towsley, 53 AD3d 1083, 1084, lv denied 11

NY3d 795; People v Duda, 45 AD3d 1464, 1466, lv denied 10 NY3d 764). 

Consequently, we conclude that defendant was not in custody. In any

event, the police sergeant provided Miranda warnings at the start of
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KA 09-02633 

the interview, prior to any statements being made by defendant.

We also reject defendant’s contention that his statements were

the result of police coercion and intimidation. The record of the

suppression hearing supports the court’s determination that the

statements were not coerced, i.e., defendant received no promises in

exchange for making the statements and he was not threatened in any

way, and “the court’s determination is entitled to great deference”

(People v Peay, 77 AD3d 1309, 1310, lv denied 15 NY3d 955; see People

v Heary, 104 AD3d 1208, 1210, lv denied 21 NY3d 943, reconsideration

denied 21 NY3d 1016; see generally People v Prochilo, 41 NY2d 759,

761). Contrary to defendant’s further contention, the evidence

introduced at the suppression hearing fails to establish that he did

not understand the import of the Miranda warnings. To the contrary,

having reviewed the record of the Huntley hearing, we conclude that

“defendant understood the Miranda warnings and, with such

understanding, freely chose to answer the questions asked by the

police” (People v Benton, 158 AD2d 987, 987, lv denied 75 NY2d 963;

see People v Young, 303 AD2d 952, 952).

We reject defendant’s further contention that the statements were

not sufficiently corroborated. “A person may not be convicted of any

offense solely upon evidence of a confession or admission made by him

without additional proof that the offense charged has been committed”

(CPL 60.50). “[T]he policy behind the statute is satisfied by the

production of some [evidence], of whatever weight, that a crime was

committed by someone” (People v Daniels, 37 NY2d 624, 629; see People

v Booden, 69 NY2d 185, 187-188). Viewing the evidence in the light

most favorable to the People (see People v Potter, 262 AD2d 1074,

1074; see generally People v Smith, 55 NY2d 945, 947), we conclude

that the 13-year-old victim’s testimony that defendant had sexual

intercourse with her was sufficient to meet the corroboration

requirement. 

Defendant contends that the verdict is against the weight of the

evidence because, inter alia, the jury acquitted him of certain

additional crimes involving the same victim. That contention is

actually a challenge to the verdict as repugnant, but defendant failed

to preserve that challenge for our review inasmuch as he did not

object to the verdict on that ground before the jury was discharged

(see People v Alfaro, 66 NY2d 985, 987). We decline to exercise our

power to review that contention as a matter of discretion in the

interest of justice (see CPL 470.15 [6] [a]). Viewing the evidence in

light of the elements of the crimes as charged to the jury (see People

v Danielson, 9 NY3d 342, 349), we otherwise reject defendant’s

contention that the verdict is against the weight of the evidence (see

generally People v Bleakley, 69 NY2d 490, 495).

Defendant also failed to preserve for our review his contention

that the court erred in permitting the People to recall the victim to

testify following the testimony of another witness (see People v Hare,

27 AD3d 1171, 1172, lv denied 6 NY3d 894; People v Cunningham, 13 AD3d

1118, 1119-1120, lv denied 4 NY3d 829). In any event, we conclude
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KA 09-02633 

that the court did not abuse its discretion in permitting the People

to recall the victim as a witness (see People v Rostick, 244 AD2d 768,

768-769, lv denied 91 NY2d 929). 

Defendant failed to preserve for our review his further

contention that the sentence imposed was a vindictive punishment for

rejecting the plea offer and proceeding to trial (see People v Hurley,

75 NY2d 887, 888). In any event, that contention is without merit. 

Defendant primarily relies upon the fact that a longer sentence was

imposed after trial, but “[i]t is well settled that [t]he mere fact

that a sentence imposed after trial is greater than that offered in

connection with plea negotiations is not proof that defendant was

punished for asserting his right to trial” (People v Spencer, 108 AD3d

1081, 1083 [internal quotation marks omitted]). Finally, the sentence

is not unduly harsh or severe. 

Entered: November 15, 2013 Frances E. Cafarell

Clerk of the Court