People v. Molina
| Decision Date | 12 November 2020 |
| Docket Number | Ind.No. 12–00674,2013–06164 |
| Citation | 133 N.Y.S.3d 618,188 A.D.3d 920 |
| Parties | The PEOPLE, etc., respondent, v. Edward MOLINA, appellant. |
| Court | New York Supreme Court — Appellate Division |
Thomas Theophilos, Buffalo, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
RUTH C. BALKIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Lester B. Adler, J.), rendered May 16, 2013, convicting him of course of sexual conduct against a child in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is modified, on the law, by vacating the conviction of endangering the welfare of a child, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was indicted by a grand jury and charged with course of sexual conduct against a child in the first and second degrees and endangering the welfare of a child, based upon allegations that he engaged in sexual conduct with his former paramour's daughter during a period of time between February 1, 2004, and January 21, 2009, when the child was younger than 13 years old. Following a hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. After a jury trial, the defendant was convicted of course of sexual conduct against a child in the first degree and endangering the welfare of a child.
The defendant contends that the charges in the indictment were time-barred and therefore should have been dismissed. We agree with the defendant's contention that the charge of endangering the welfare of a child was time-barred. The statute of limitations as to the crime of endangering the welfare of a child, a class A misdemeanor, is two years (see Penal Law § 260.10[1] ; CPL 30.10[2][c] ). Here, with respect to the count of endangering the welfare of a child, the statute of limitations expired on January 21, 2011, yet the defendant was not arrested until August 26, 2011, with the felony complaint being filed on August 29, 2011. The indictment was filed on June 21, 2012. Accordingly, the charge of endangering the welfare of child should have been dismissed as time-barred (see CPL 30.10[2][c] ; People v. Wildrick, 83 A.D.3d 1455, 1456, 920 N.Y.S.2d 540 ; People v. Hughes, 72 A.D.3d 1121, 1122, 897 N.Y.S.2d 315 ; People v. Heil, 70 A.D.3d 1490, 1491, 894 N.Y.S.2d 664 ). As to the timeliness of the remaining counts of the indictment, the defendant's contentions are unpreserved for appellate review and, in any event, without merit.
The defendant's challenge to the denial of that branch of his omnibus motion which was to suppress his statements to law enforcement officials is unpreserved for appellate review to the extent that it is based upon an alleged violation of the Fourth Amendment of the United States Constitution and the lack of hearing testimony from a particular detective (see CPL 470.05 ; People v. Martin, 50 N.Y.2d 1029, 1031, 431 N.Y.S.2d 689, 409 N.E.2d 1363 ), and we decline to reach those unpreserved contentions in the exercise of our interest of justice jurisdiction. Contrary to the defendant's preserved contention, the statements he made to law enforcement officials at the precinct house were not otherwise subject to suppression, as the record demonstrated that the defendant was properly administered Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) and, thereafter, knowingly, voluntarily, and intelligently waived his Miranda rights (see People v. Sonam, 180 A.D.3d 717, 115 N.Y.S.3d 709 ; People v. Humphrey, 176 A.D.3d 1101, 111 N.Y.S.3d 49 ; People v. Ramos, 164 A.D.3d 1267, 83 N.Y.S.3d 580 ). Accordingly, we agree with the Supreme Court's determination to deny that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
The defendant contends that the Supreme Court erred in denying his for-cause challenge of a prospective juror because, among other things, her statements indicated her inability to be fair and impartial. "[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial" ( People v. Warrington, 28 N.Y.3d 1116, 1119–1120, 45 N.Y.S.3d 345, 68 N.E.3d 70 [internal quotation marks omitted]; see CPL 270.20[1][b] ; People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 ; People v. Johnson, 17 N.Y.3d 752, 753, 929 N.Y.S.2d 16, 952 N.E.2d 1008 ). We agree with the court's denial of the defendant's for-cause challenge to the subject prospective juror, since, upon further inquiry, she unequivocally stated that she would be impartial (see People v. Brims, 145 A.D.3d 1025, 45 N.Y.S.3d 488 ).
The defendant's contention that his convictions are entitled to summary reversal because jury notes submitted during deliberations were lost, thereby making appellate review of whether the Supreme Court sufficiently responded to them impossible, is without merit, because the contents of the notes were read into the record at trial (see generally People v. Hall, 32 N.Y.2d 546, 551, 347 N.Y.S.2d 16, 300 N.E.2d 399 ).
The defendant's contention that certain remarks made by the prosecutor in summation deprived him of a fair trial is unpreserved for appellate review, since the defendant either failed to object to the contested remarks or raised only a general objection, and failed to make a timely motion for a mistrial on the specific grounds he raises on appeal (see CPL 470.05[2] ; People v. Willis, 165 A.D.3d 984, 985, 85 N.Y.S.3d 230 ). In any event, the defendant's contention is without merit, as the remarks were either fair comment on the evidence, a fair response to the defense summation, or not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Rodriguez, 175 A.D.3d 721, 105 N.Y.S.3d 307 ; People v. Carter, 152 A.D.3d 786, 56 N.Y.S.3d 471 ).
The defendant's contention that he was deprived of a fair trial due to improper witness bolstering and vouching is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to reach the contention in the exercise of our interest of justice jurisdiction.
The Supreme Court providently exercised its discretion in denying the defendant's request for a missing witness charge in relation to the victim's brother. The People established that the victim's brother was not under their control and would not have provided material testimony favorable to the prosecution (see People v. Alston, 155 A.D.3d 887, 63 N.Y.S.3d 696 ; People v. Roseboro, 127 A.D.3d 998, 6 N.Y.S.3d 629 ).
The defendant's contention that the evidence was legally insufficient to establish his guilt of course of sexual conduct against a child in the first degree is unpreserved for appellate review to the extent that it is based upon establishing proper venue (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of course of sexual conduct against a child in the first degree (see People v. Cooper, 151 A.D.3d 1831, 57 N.Y.S.3d 816 ; People v....
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