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PEOPLE STATE NEW YORK v. TIMOTHY G. GUTKAISS (07/14/94)

decided: July 14, 1994.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TIMOTHY G. GUTKAISS, APPELLANT.



Before: Cardona, P.j., Mikoll, Crew III, White and Casey, JJ.

Author: White

MEMORANDUM AND ORDER

White, J.

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered June 1, 1993, upon a verdict convicting defendant of the crime of sodomy in the first degree.

Responding to a child abuse hotline report, State Police Investigator Thomas Aiken on July 27, 1992 interviewed two boys, ages 11 (hereinafter victim A) and eight (hereinafter victim B), who related they were sexually abused by defendant on several occasions in 1987 and 1988. Aiken arrested defendant the next day and brought him to a State Police barracks where defendant gave a written statement denying any sexual contact with the victims. Thereafter, defendant was indicted and, following trial, convicted of the crime of sodomy in the first degree. Defendant appeals.

Defendant's first argument for reversal centers on the facts surrounding his arrest. It appears that during the summer of 1992 the victims' stepfather and defendant were engaged in the construction of a camp at Summit Lake in the Town of Argyle, Washington County. In order to effect defendant's arrest, Aiken had the victims' stepfather call defendant to have him come to Summit Lake on the pretext that some construction work had to be done on the camp. When defendant arrived at the construction site, he was arrested. Defendant contends that his arrest was unlawful because it was the "functional equivalent" of a warrantless arrest inside a home which is proscribed by the 4th Amendment of the U.S. Constitution (see, Payton v New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371).

We disagree. Although defendant's arrest was accomplished by means of a calculated police ruse, the deception was not "so fundamentally unfair as to deny due process" (People v Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188; see, People v Rosario, 186 A.D.2d 598, 588 N.Y.S.2d 393, lv denied 81 N.Y.2d 794). Moreover, there was no physical entry, no invasion of privacy and sanctity of the home and, most importantly, defendant was not compelled or coerced by the police to leave his home (see, People v Coppin, A.D.2d [Mar. 15, 1994]; People v Roe, 136 A.D.2d 140, 525 N.Y.S.2d 966, affd 73 N.Y.2d 1004, 541 N.Y.S.2d 759, 539 N.E.2d 587).

At his suppression hearing, defendant testified that when he was arrested he asked Aiken if he had a right to a lawyer and that Aiken said there was no need for one. Aiken, on the other hand, testified that defendant did not request an attorney or invoke his right to counsel when given his Miranda rights. County Court credited Aiken's testimony over that of defendant and denied defendant's motion to suppress his written statement. In view of the great weight accorded a hearing court's suppression determinations, and in the absence of any basis in the record for finding that County Court's resolution of the credibility issue was clearly erroneous, there is no reason to disturb ...


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