People v. Plass

• Decision Date: 11 April 2018
• Docket Number: 2015–05002,Ind. No. 127/13
• Citation: 74 N.Y.S.3d 587,160 A.D.3d 771
• Parties: The PEOPLE, etc., respondent, v. Scott PLASS, appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 771
74 N.Y.S.3d 587

The PEOPLE, etc., respondent,
v.
Scott PLASS, appellant.

2015–05002
Ind. No. 127/13

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

Submitted—December 7, 2017
April 11, 2018

74 N.Y.S.3d 588

Bruce A. Petito, Poughkeepsie, NY, for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Victor Alfieri, J.), rendered May 27, 2015, convicting him of criminal sexual act in the third degree (six counts), sexual abuse in the third degree (three counts), 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 (Stephen L. Greller, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

The defendant was charged with criminal sexual act in the third degree (six counts), sexual abuse in the third degree (three counts), and endangering the welfare of a child, for conduct against a victim who was 16 years old at the time of the offenses. The County Court denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities, and his separate motion to sever count 10 of the indictment, which charged endangering the welfare of a child, on the ground that the acts underlying that charge were alleged to have been committed outside the court's jurisdiction. After a trial, a jury convicted the defendant of all 10 counts.

Pursuant to CPL 20.40, and insofar as is relevant here, a County Court has jurisdiction over an offense where, inter alia, conduct occurred within the county which was sufficient to establish an element of the offense (see People v. Guzman, 153 A.D.3d 1273, 1275, 61 N.Y.S.3d 573 ). Two offenses are properly joinable in the same indictment pursuant to CPL 200.20(2)(b) when they are based upon different criminal transactions, but they "are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second," or, pursuant to subsection (c), when they are "defined by the same or similar statutory provisions and consequently are the same or similar in law" ( CPL 200.20[2][b], [c] ). A defendant may seek severance of counts joined under subsection (c) "in the interest of justice and for good cause shown" ( CPL 200.20[3] ; see People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456 ;

74 N.Y.S.3d 589

People v. Haywood, 124 A.D.3d 798, 800, 2 N.Y.S.3d 164 ). Good cause exists where, inter alia, there is substantially more evidence as to one offense than the others and the jury is unlikely to be able to separate them or where the defendant demonstrates that he has important testimony to give regarding one count and a genuine need to refrain from testifying as to the other (see CPL 200.20[3][a], [b] ). However, where counts are properly joined under subsection (b), a court does not have the authority to sever the counts (see People v. Bonilla, 127 A.D.3d 985, 986, 6 N.Y.S.3d 147 ; People v. Beecham, 74 A.D.3d 1216, 904 N.Y.S.2d 727 ).

Here, the alleged conduct forming the basis for count 10 of the indictment occurred in both Dutchess and Suffolk Counties, and proof of the conduct constituting the other nine counts was material and admissible as evidence in chief as to count 10. Further, the conduct which allegedly occurred in Dutchess County was sufficient to establish an element of the offense of endangering the welfare of a child (see CPL 20.40[1][a] ). Accordingly, count 10 was properly joined to the other counts pursuant to CPL 200.20(2)(b), and the County Court correctly concluded that it lacked the authority to sever it (see People v. Bonilla, 127 A.D.3d at 986, 6 N.Y.S.3d 147 ; People v. Beecham, 74 A.D.3d at 1216, 904 N.Y.S.2d 727 ).

"At a hearing to suppress statements made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant's statements were voluntary" ( People v. Johnson, 139 A.D.3d 967, 969, 34 N.Y.S.3d 62, affd 31 N.Y.3d 942, 73 N.Y.S.3d 113, 96 N.E.3d 209, 2018 WL 1413471 ; see People v. Jin Cheng Lin, 26 N.Y.3d 701, 719, 27 N.Y.S.3d 439, 47 N.E.3d 718 ; People v. Thomas, 22 N.Y.3d 629, 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 ; People v. Williams, 62 N.Y.2d 285, 288–289, 476 N.Y.S.2d 788, 465 N.E.2d 327 ). If the People meet their burden, the defendant then bears the burden of persuasion (see People v. Johnson, 139 A.D.3d at 969, 34 N.Y.S.3d 62 ; People v. Santos, 112 A.D.3d 757, 758, 976 N.Y.S.2d 565 ; People v. Aveni,...