People v. Bradberry

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Bradberry, 2015 NY Slip Op 6609, 131 AD3d 800, 16 N.Y.S.3d 97 (N.Y. App. Div. 2015)
• Decision Date: 19 August 2015
• Docket Number: 643 KA 13-02191
• Parties: The PEOPLE of the State of New York, Respondent, v. James D. BRADBERRY, Defendant–Appellant.

131 A.D.3d 800

16 N.Y.S.3d 97

2015 N.Y. Slip Op. 06609

The PEOPLE of the State of New York, Respondent

v.James D. BRADBERRY, Defendant–Appellant.

643 KA 13-02191

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

Aug. 19, 2015.

Kathryn Friedman, Buffalo, for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY and DeJOSEPH, JJ.

OpinionMEMORANDUM:

Defendant appeals from a judgment convicting him after a nonjury trial of two counts of course of sexual conduct against a child in the first degree (Penal Law § 130.75 ) as a lesser included offense of predatory sexual assault against a child (§ 130.96) and one count of incest in the second degree (§ 255.26). We reject defendant's contention that Supreme Court erred in refusing to dismiss the indictment based on its lack of specificity with respect to the time frames alleged in the two counts of predatory sexual assault against a child. It is well settled that the crime of predatory sexual assault against a child “is a continuing offense to which ‘the usual requirements of specificity with respect to time do not apply’ ” (People v. Muhina, 66 A.D.3d 1397, 1398, 885 N.Y.S.2d 809, lv. denied 13 N.Y.3d 909, 895 N.Y.S.2d 323, 922 N.E.2d 912 ; see People v. Colf, 286 A.D.2d 888, 888–889, 730 N.Y.S.2d 749, lv. denied 97 N.Y.2d 655, 737 N.Y.S.2d 56, 762 N.E.2d 934 ). Here, the time periods of 7.5 months and one year alleged in the indictment were “sufficient to give defendant adequate notice of the charges to enable him to prepare a defense, to ensure that the crimes for which he was tried were in fact the crimes with which he was charged, and ‘to protect [his] right not to be twice placed in jeopardy for the same conduct’ ” (People v. McLoud, 291 A.D.2d 867, 868, 737 N.Y.S.2d 216, lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232 ).

We reject defendant's further contention that the court erred in refusing to suppress statements that he made during a police-monitored telephone conversation with the victim. There is no merit to his contention that the statements were admitted in violation of CPLR 4506(1). It is well established that one of the parties to a telephone conversation may consent to the wiretapping or recording of the conversation (see People v. Phillips, 55 A.D.2d 661, 661, 390 N.Y.S.2d 6, lv. denied 41 N.Y.2d 868, citing United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, reh. denied

402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156 ; cf. Pica v. Pica, 70 A.D.2d 931, 931–932, 417 N.Y.S.2d 528 ), and here the victim gave her consent. Defendant failed to preserve for our review his contention that the victim, as a minor, could not consent to the recording of her own conversations (see generally People v. Furlong, 4 A.D.3d 839, 840, 772 N.Y.S.2d 779, lv. denied 2 N.Y.3d 739, 778 N.Y.S.2d 465, 810 N.E.2d 918 ). We note in any event that the victim's mother consented to the recording, and we conclude that the “vicarious consent” exemption applies under the circumstances presented such that the admission of the subject recording was not barred by CPLR 4506 (see People v. Badalamenti, 124 A.D.3d 672, 674, 1 N.Y.S.3d 242lv. granted 25 N.Y.3d 949, 7 N.Y.S.3d 278, 30 N.E.3d 169 ; People v. Hills, 176 A.D.2d 375, 375, 574 N.Y.S.2d 82 ; People v. Bastian, 125 A.D.2d 909, 909–910, 510 N.Y.S.2d 269, lv. denied 69 N.Y.2d 824, 513 N.Y.S.2d 1030, 506 N.E.2d 541 ). Also contrary to defendant's contention, his statements in the controlled telephone call were not inadmissible pursuant to CPL 60.45. Even assuming, arguendo, that the victim was acting as an agent of the police when she telephoned defendant, the calls were recorded with the victim's consent (see People v. Taplin, 1 A.D.3d 1044, 1045, 767 N.Y.S.2d 541, lv. denied 1 N.Y.3d 635, 777 N.Y.S.2d 33, 808 N.E.2d 1292 ), and “the victim did not make a threat that would create a substantial risk that defendant might falsely incriminate himself” (People v. Stroman, 286 A.D.2d 974, 975, 730 N.Y.S.2d 612, lv. denied 97 N.Y.2d 688, 738 N.Y.S.2d 304, 764 N.E.2d 408 ; see Taplin, 1 A.D.3d at 1045, 767 N.Y.S.2d 541 ). We reject defendant's further contention that the controlled telephone call constituted an unconstitutionally deceptive police tactic. “Deceptive police stratagems in securing a statement ‘need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession’ ” (People v. Dishaw, 30 A.D.3d 689, 690, 816 N.Y.S.2d 235, lv. denied 7 N.Y.3d 787, 821 N.Y.S.2d 817, 854 N.E.2d 1281, quoting People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188 ), and there was no such showing here.

We reject defendant's further contention that the court erred in permitting the prosecutor to elicit testimony concerning the fact that defendant was incarcerated at a particular point in time. Such evidence was inextricably interwoven with and provided a relevant temporal reference for one of the crimes charged in the indictment (see People v. Vails, 43 N.Y.2d 364, 368, 401 N.Y.S.2d 479, 372 N.E.2d 320 ; People v. Gantz, 104 A.D.2d 692, 692–693, 480 N.Y.S.2d 583 ).

Contrary to defendant's contention, we conclude that the conviction is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Lashway, 112 A.D.3d 1222, 1224–1225, 978 N.Y.S.2d 388 ). We reject defendant's further contention that his conviction of incest was in violation of Penal Law § 130.75(2), which provides that “[a] person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other...