People v. Hoke
| Decision Date | 28 July 1983 |
| Citation | 466 N.Y.S.2d 534,96 A.D.2d 677 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Douglas E. HOKE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Douglas P. Rutnik, Albany County Public Defender, Albany (Sharon D. Flaherty, Albany, of counsel), for appellant.
Sol Greenberg, Albany County Dist. Atty., Albany (George H. Barber, Albany, of counsel), for respondent.
Before MAIN, J.P., and CASEY, YESAWICH, WEISS and LEVINE, JJ.
Appeal from a judgment of the County Court of Albany County, rendered May 12, 1981, upon a verdict convicting defendant of the crimes of sodomy in the first degree and sodomy in the second degree.
On this appeal defendant raises several legal arguments for reversal, only two of which, in our opinion, require consideration.
In regard to the first, we find no merit to defendant's contention that the trial court erred in refusing to grant his motion for a trial severance of the separate incidents charged in the indictment. Although the attack on the 10-year-old male victim occurred some three days after the attack on the 13-year-old girl, all the crimes were joinable under CPL 200.20 (subd. 2, par. [c] ) where, as here, they were "the same or similar in law" (People v. Jenkins, 50 N.Y.2d 981, 431 N.Y.S.2d 471, 409 N.E.2d 944). The identification of defendant was positive in respect to both incidents. Therefore, prejudice arising from the possibility that the jury might aggregate the evidence relating to each incident has not been shown and the court did not abuse its discretion in requiring a single trial of all the crimes charged (People v. Hallingquest, 79 A.D.2d 1010, 435 N.Y.S.2d 35).
In regard to the second contention, we find no error in the trial court's failure to apply the standard of voluntariness prescribed by People v. Yarter, 51 A.D.2d 835, 380 N.Y.S.2d 96, affd. 41 N.Y.2d 830, 393 N.Y.S.2d 399, 361 N.E.2d 1047, which requires the People to bear the burden of accounting beyond a reasonable doubt for the condition of a defendant who somehow sustains injury while in police custody, and if they do not, or if the police merely deny any beating, to suffer the suppression of any statement made by a defendant so situated. The statements of this defendant regarding the attack on the boy were taken by Inspector Voss of the Albany Police Department at the time of defendant's initial arrest when, according to the inspector, whose testimony was credited by the...
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