People v. Johnson

• Decision Date: 27 September 2013
• Citation: 972 N.Y.S.2d 378,2013 N.Y. Slip Op. 06194,109 A.D.3d 1187
• Parties: The PEOPLE of the State of New York, Respondent, v. Gregory JOHNSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 1187
972 N.Y.S.2d 378
2013 N.Y. Slip Op. 06194

The PEOPLE of the State of New York, Respondent,
v.
Gregory JOHNSON, Defendant–Appellant.

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

Sept. 27, 2013.

[972 N.Y.S.2d 379]

Frank H. Hiscock Legal Aid Society, Syracuse (Christine Cook of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS AND VALENTINO, JJ.

MEMORANDUM:

[109 A.D.3d 1187][1] Defendant appeals from a judgment convicting him, upon a nonjury verdict, of two counts of criminal sexual act in

[972 N.Y.S.2d 380]

the second degree (Penal Law § 130.45[1] ) and one count of endangering the welfare of a child (§ 260.10[1] ). We reject defendant's contention that Supreme Court erred in refusing to suppress his statement to the police. Even assuming, arguendo, that defendant was in custody when he made the statement, we conclude that the evidence presented at the suppression hearing supports the court's determination that defendant knowingly, voluntarily, and intelligently waived his Miranda rights before making the statement ( see People v. Peterkin, 89 A.D.3d 1455, 1455, 932 N.Y.S.2d 639,lv. denied18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132). Contrary to defendant's contention, “ the record of the suppression hearing fails to establish that he was intoxicated at the time he waived those rights ‘to the degree of mania, or of being unable to understand the meaning of his statements' ” ( id. at 1455, 932 N.Y.S.2d 639, quoting People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305,cert. denied389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157).

Defendant also contends that he was denied his constitutional right to present a defense based on the refusal of County Court, which conducted the nonjury trial, to admit in evidence a neglect petition filed in Family Court against the victim's mother. That contention is not preserved for our review ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61;People v. Baxter, 108 A.D.3d 1158, 1160, 969 N.Y.S.2d 678). In any event, it is well settled that the “right to ... present a defense is not absolute” [109 A.D.3d 1188]( People v. Williams, 81 N.Y.2d 303, 313, 598 N.Y.S.2d 167, 614 N.E.2d 730), and we conclude that the petition was “too remote or speculative” to establish that the victim's mother was attempting to manipulate the victim...