People v. Fisher

• Decision Date: 05 March 2015
• Docket Number: 105801
• Citation: 2015 N.Y. Slip Op. 01836,126 A.D.3d 1048,4 N.Y.S.3d 703
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert S. FISHER, Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1048

4 N.Y.S.3d 703

2015 N.Y. Slip Op. 01836

The PEOPLE of the State of New York, Respondent

v.Robert S. FISHER, Appellant.

105801

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

March 5, 2015.

Stacey L. Gorman, Ballston Spa, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Jason M. Carusone of counsel), for respondent.

Before: McCARTHY, J.P., ROSE, EGAN JR. and DEVINE, JJ.

Opinion

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 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 A.D.3d 872, 874, 969 N.Y.S.2d 581 [2013], lvs. denied 22 N.Y.3d 957, 957, 977 N.Y.S.2d 188, 188, 999 N.E.2d 553, 553 [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 2 ½ hours, during the course of which the investigator utilized his 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 A.D.3d 710, 711, 884 N.Y.S.2d 494 [2009], lv. denied 13 N.Y.3d 940, 895 N.Y.S.2d 330, 922 N.E.2d 919 [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 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...