People v. Schroo

• Decision Date: 30 September 2011
• Citation: 2011 N.Y. Slip Op. 06681,87 A.D.3d 1287,930 N.Y.S.2d 158
• Parties: The PEOPLE of the State of New York, Respondent,v.Jeremy SCHROO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 1287

930 N.Y.S.2d 158

2011 N.Y. Slip Op. 06681

The PEOPLE of the State of New York, Respondent,

v.Jeremy SCHROO, Defendant–Appellant.

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

Sept. 30, 2011.

D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.Jason L. Cook, District Attorney, Penn Yan (Wendy Evans Lehmann of Counsel), for Respondent.PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, two counts of sexual abuse in the first degree (Penal Law § 130.65[3] ) in connection with two victims, one of whom is his daughter, and one count of course of sexual conduct against a child in the first degree (§ 130.75[1][a] ) with respect to his daughter. Defendant contends that County Court erred in refusing to suppress statements that he made to the police because the police officer had not told him he was free to leave before he made incriminating statements. We reject defendant's contention that he was in custody when he made the statements. Indeed, the court's determination that defendant was not in custody when he made the statements will not be disturbed unless it is “ ‘clearly erroneous,’ ” and that is not the case here ( People v. Jones, 9 A.D.3d 837, 839, 779 N.Y.S.2d 695, lv. denied 3 N.Y.3d 708, 785 N.Y.S.2d 35, 818 N.E.2d 677, 4 N.Y.3d 745, 790 N.Y.S.2d 657, 824 N.E.2d 58). The evidence presented at the suppression hearing established that defendant initially was interviewed for 25 minutes at the public safety building. He drove himself there and was not restrained, and the questions were investigative rather than accusatory. Thus, the court properly determined that defendant was not in custody when he made certain of the self-incriminating remarks sought to be suppressed ( see People v. Lunderman, 19 A.D.3d 1067, 1068–1069, 796 N.Y.S.2d 481, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743). With respect to the remainder of the remarks sought to be suppressed, we note that the second interview during which defendant made those remarks occurred in his home, where he also was not in custody ( see People v. Paulman, 11 A.D.3d 878, 782 N.Y.S.2d 884, affd. 5 N.Y.3d 122, 800 N.Y.S.2d 96, 833 N.E.2d 239).

Defendant further contends that the evidence with respect to the younger of the two victims, who is not his daughter, is legally insufficient to support the conviction of one of the two counts of sexual abuse in the first degree because that child was not competent to testify under oath and because the People failed to prove the element that defendant's conduct was for the purpose of gratifying his sexual desire. Defendant failed to preserve those contentions for our review ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, they are without merit. The presumption pursuant to CPL 60.20(2) that a child under the age of nine is not competent to give sworn testimony in a criminal proceeding may be overcome “if, upon examination, the court is satisfied that the witness understands the nature of an oath” ( People v. Hetrick, 80 N.Y.2d 344, 349, 590 N.Y.S.2d 183, 604 N.E.2d 732) and, contrary to defendant's contention, the court properly determined in this case that the presumption of incompetency was overcome ( see generally People v. Heck, 229 A.D.2d 931, 932, 645 N.Y.S.2d 681). Also contrary to defendant's contention, the element of sexual gratification may be inferred from the sexual nature of defendant's actions ( see People v. Willis, 79 A.D.3d 1739, 1740, 917 N.Y.S.2d 788, lv. denied 16 N.Y.3d 864, 923 N.Y.S.2d 426, 947 N.E.2d 1205).

With respect to the crimes related to his daughter, upon viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), a rational trier of fact could have found the essential elements of those crimes beyond a reasonable doubt and thus the evidence is legally sufficient to support the conviction ( see People v. Calabria, 3 N.Y.3d 80,...