People v. Perri

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Perri, 77 N.Y.S.3d 815 (N.Y. App. Div. 2018)
• Decision Date: 08 June 2018
• Docket Number: 416,KA 14–00587
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony S. PERRI, Defendant–Appellant.

162 A.D.3d 1487

77 N.Y.S.3d 815

The PEOPLE of the State of New York, Respondent,

v.Anthony S. PERRI, Defendant–Appellant.

416

KA 14–00587

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

Entered: June 8, 2018

MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (JOSEPH PLUKAS OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CARNI, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, that part of the omnibus motion seeking to suppress defendant's videotaped statement is granted in its entirety, the motion to preclude the use of defendant's grand jury testimony at trial is granted, and a new trial is granted.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of three counts each of sexual abuse in the first degree ( Penal Law § 130.65[3] ) and endangering the welfare of a child (§ 260.10[1] ). We reject defendant's contention that the conviction is not supported by legally sufficient evidence. There is a valid line of reasoning and permissible inferences that could lead a rational person to conclude that defendant committed the crimes in question (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Defendant contends that County Court erred in refusing to suppress evidence of the viewing by victims of video surveillance footage, because the sole purpose of the viewing was the identification of defendant and the procedure used for viewing the video recording was unduly suggestive. We reject defendant's contention. " ‘[T]here is nothing inherently suggestive’ in showing a witness a surveillance video depicting the defendant and other individuals, provided that the ‘defendant was not singled-out, portrayed unfavorably, or in any other manner prejudiced by police conduct or comment or by the setting in which [the defendant] was taped’ " ( People v. Davis, 115 A.D.3d 1167, 1169, 982 N.Y.S.2d 230 [4th Dept. 2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014], quoting People v. Edmonson, 75 N.Y.2d 672, 676–677, 555 N.Y.S.2d 666, 554 N.E.2d 1254 [1990], rearg. denied 76 N.Y.2d 846, 560 N.Y.S.2d 130, 559 N.E.2d 1289 [1990], cert denied 498 U.S. 1001, 111 S.Ct. 563, 112 L.Ed.2d 570 [1990] ), and we conclude that the procedure used here did not suffer from those infirmities.

We agree with defendant, however, that the court erred in suppressing only a portion of his videotaped statement to police investigators inasmuch as the portion of the statement that the court refused to suppress was also obtained prior to the administration of Miranda warnings. Although the court properly determined that defendant was in custody from the outset of the interview, we conclude that the court erred in determining that Miranda warnings were not required before defendant admitted to having a foot fetish inasmuch as "the facts indicated that an interrogational environment existed" from the outset of the interview ( People v. Tavares–Nunez, 87 A.D.3d 1171, 1173, 930 N.Y.S.2d 589 [2d Dept. 2011], lv denied 19 N.Y.3d 1105, 955 N.Y.S.2d 561, 979 N.E.2d 822 [2012] ; see People v. Bungo, 60 A.D.3d 1449, 1449, 876 N.Y.S.2d 291 [4th Dept. 2009] ; People v. Kollar, 305 A.D.2d 295, 299, 760 N.Y.S.2d 449 [1st Dept. 2003], appeal dismissed 1 N.Y.3d 591, 776 N.Y.S.2d 218, 808 N.E.2d 354 [2004] ).

We also agree with defendant that the court erred in denying his motion to preclude the People's use of his grand jury testimony at trial on the ground that he was mentally incompetent at the time of such testimony. Although a defendant is presumed to be competent to testify before the grand jury (see People v. Gelikkaya, 84 N.Y.2d 456, 459, 618 N.Y.S.2d 895, 643 N.E.2d 517 [1994] ; People v. Bones, 309 A.D.2d 1238, 1239, 764 N.Y.S.2d 743 [4th...