People v. Baez

• Decision Date: 22 August 2019
• Docket Number: KA 17-00968,582
• Citation: 175 A.D.3d 982,108 N.Y.S.3d 586
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard BAEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 982
108 N.Y.S.3d 586

The PEOPLE of the State of New York, Respondent,
v.
Richard BAEZ, Defendant–Appellant.

582
KA 17-00968

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: August 22, 2019

PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.

MEMORANDUM AND ORDER

175 A.D.3d 982

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of rape in the first degree and dismissing count one of the indictment, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree ( Penal Law § 130.35[1] ), and two counts each of predatory sexual assault against a child (§ 130.96) and predatory sexual assault (§ 130.95[2] ). We reject defendant's contention that he was subjected to custodial interrogation by Rochester police investigators who did not provide Miranda warnings and that County Court (Ciaccio, J.) therefore erred in refusing to suppress the statements that he made to them. "In determining whether a defendant was in custody for Miranda purposes, ‘[t]he test is not what the defendant thought, but rather what

175 A.D.3d 983

a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position’ " ( People v. Kelley, 91 A.D.3d 1318, 1318, 937 N.Y.S.2d 514 [4th Dept. 2012], lv denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 [2012], quoting People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ; see People v. Thomas, 166 A.D.3d 1499, 1500, 87 N.Y.S.3d 431 [4th Dept. 2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 616, 121 N.E.3d 244 [2019] ). Here, upon review of the relevant factors (see People v. Lunderman, 19 A.D.3d 1067, 1068–1069, 796 N.Y.S.2d 481 [4th Dept. 2005], lv denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ) and

108 N.Y.S.3d 589

giving due deference to the hearing court's credibility determinations (see People v. Clark, 136 A.D.3d 1367, 1368, 25 N.Y.S.3d 485 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 [2016] ), we conclude that "the evidence at the Huntley hearing establishes that defendant was not in custody when he made the statements, and thus Miranda warnings were not required" ( People v. Bell–Scott, 162 A.D.3d 1558, 1559, 78 N.Y.S.3d 846 [4th Dept. 2018], lv denied 32 N.Y.3d 1169, 97 N.Y.S.3d 614, 121 N.E.3d 242 [2019] ; see People v. Rounds, 124 A.D.3d 1351, 1352, 999 N.Y.S.2d 647 [4th Dept. 2015], lv denied 25 N.Y.3d 1077, 12 N.Y.S.3d 628, 34 N.E.3d 379 [2015] ). Specifically, the evidence establishes, inter alia, that defendant was told at the start of the interview that he was not under arrest and would be going home that day (see Bell–Scott, 162 A.D.3d at 1559, 78 N.Y.S.3d 846 ; People v. Cordato, 85 A.D.3d 1304, 1309, 924 N.Y.S.2d 649 [3d Dept. 2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ), and the recording of the interview belies defendant's contention that he was in handcuffs when he was placed in the interview room. Defendant concedes that he indeed was not arrested at the time of the interview, and that he was given a ride home later that day. We reject defendant's contention that, because a police officer testified that defendant was not free to leave during transport to the police station, the court erred in concluding that defendant was not in custody. A police officer's subjective belief " ‘has no bearing on the question whether a suspect was in custody at a particular time ... [and] the subjective intent of the officer ... is irrelevant’ where, as here, there is no evidence that such subjective intent was communicated to the defendant" ( Thomas, 166 A.D.3d at 1500, 87 N.Y.S.3d 431 ). Contrary to defendant's further contention, Miranda warnings were not required before the investigators asked pointed questions. It is well settled that "both the elements of police ‘custody’ and police ‘interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda " ( People v. Huffman, 41 N.Y.2d 29, 33, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ; see People v. Anthony, 85 A.D.3d 1634, 1635, 925 N.Y.S.2d 313 [4th Dept. 2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ), and the element of custody was absent here. We have considered defendant's remaining contentions with respect to the statements that he gave to the police, and we conclude that they lack merit.

175 A.D.3d 984

We also reject defendant's contention that reversal is required based on the actions of the trial court (Morse, A.J.) with respect to the expert who testified for the People regarding the child sexual abuse accommodation syndrome (CSAAS). Assuming, arguendo, that defense counsel signed and filed a motion seeking an adjournment of the trial due to the untimely nature of the People's notice of intent to offer that expert testimony, we note that defense counsel "did nothing to call the court's attention to its failure to rule on such application[ ], and thus he abandoned the issue" ( People v. Ramos, 35 A.D.3d 247, 247, 825 N.Y.S.2d 222 [1st Dept. 2006], lv denied 8 N.Y.3d 924, 926, 834 N.Y.S.2d 514, 516, 866 N.E.2d 460, 462 [2007]; see People v. Green, 19 A.D.3d 1075, 1075, 796 N.Y.S.2d 208 [4th Dept. 2005], lv denied 5 N.Y.3d 828, 804 N.Y.S.2d 43, 837 N.E.2d 742 [2005] ; see also People v. Graves, 85 N.Y.2d 1024, 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220 [1995] ). Defendant's challenge to the court's instructions to the jury during that witness's testimony is not preserved for our review inasmuch as the court "provided [ ] curative instruction[s] that, in the

108 N.Y.S.3d 590

absence of an objection or a motion for a mistrial, ‘must be deemed to have corrected the error to the defendant's satisfaction’ " ( People v. Szatanek, 169 A.D.3d 1448, 1449, 92 N.Y.S.3d 516 [4th Dept. 2019], lv denied 33 N.Y.3d 981, 101 N.Y.S.3d 260, 124 N.E.3d 749 [2019], quoting People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ; see People v. Marvin, 162 A.D.3d 1744, 1745, 80 N.Y.S.3d 787 [4th Dept. 2018], lv denied 32 N.Y.3d 1066, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ). Defendant also failed to preserve his contention that the court erred in curtailing defense counsel's questioning of that witness. Although the court sustained the prosecutor's objection to one of defense counsel's questions of that witness and provided an immediate and thorough instruction to the jury, it then informed defense counsel that it was "not saying you can't ask the exact same question again." The issue was abandoned by defendant's failure to pursue the line of questioning (see generally Graves, 85 N.Y.2d at 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220 ; People v. Carrasquillo, 85 A.D.3d 1618, 1619, 925 N.Y.S.2d 743 [4th Dept. 2011], lv denied 17 N.Y.3d 814, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ). We further conclude that defendant failed to preserve for our review his contention that the court interfered unnecessarily during the questioning of certain witnesses, thereby depriving him of a fair trial (see People v. Paulk, 107 A.D.3d 1413, 1415, 967 N.Y.S.2d 310 [4th Dept. 2013], lv denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 [2013], reconsideration denied 22 N.Y.3d 1157, 984 N.Y.S.2d 641, 7 N.E.3d 1129 [2014] ; People v. Zeito, 302 A.D.2d 923, 924, 753 N.Y.S.2d 914 [4th Dept. 2003], lv denied 99 N.Y.2d 634, 760 N.Y.S.2d 116, 790 N.E.2d 290 [2003] ). Contrary to defendant's contention, his CPL 330.30 motion did not preserve his contentions for our review (see generally People v. Malave, 52 A.D.3d 1313, 1314, 860 N.Y.S.2d 365 [4th Dept. 2008], lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Defendant...