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People v. Planty

Supreme Court of New York, Third Department

November 2, 2017

RALPH E. PLANTY, Appellant.

          Calendar Date: September 15, 2017

          D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), for appellant.

          Mary E. Rain, District Attorney, Canton (Hannah E.C. Moore, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

          Before: Garry, J.P., Egan Jr., Lynch, Aarons and Pritzker, JJ.


          GARRY, J.P.

         Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 8, 2016, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (two counts) and criminal sexual act in the first degree.

         Defendant was charged with two counts of sexual abuse in the first degree and one count of criminal sexual act in the first degree after he engaged in sexual conduct with a 12-year-old victim. County Court denied defendant's motion to suppress his statements to a police investigator. Following a jury trial, defendant was convicted as charged and sentenced to an aggregate prison term of 15 years followed by 15 years of postrelease supervision. Defendant appeals.

         We find no merit in defendant's contention that his convictions on all three counts were not supported by legally sufficient evidence and were against the weight of the evidence because the People failed to prove his age, an element of the crimes. The victim's mother testified that she had known defendant for many years, that defendant was older than she was, and that she was 40 years old at the time of the trial. This testimony, together with the jury's opportunity to observe defendant in person, "provided a legally sufficient basis for the jury to find that defendant was at least 18 years old" for purposes of his conviction for criminal sexual act in the first degree and over the age of 21 for purposes of his convictions for sexual abuse in the first degree (People v Kittles, 23 A.D.3d 775, 776 [2005], lv denied 6 N.Y.3d 755');">6 N.Y.3d 755 [2005]; see Penal Law §§ 130.50 [4]; 130.65 [4]; People v Thornton, 141 A.D.3d 936, 937 n [2016], lv denied 28 N.Y.3d 1151');">28 N.Y.3d 1151 [2017]). Deferring to the jury's credibility assessments, we cannot say that the verdict was against the weight of the evidence (see People v Stone, 133 A.D.3d 982, 982-983 [2015]).

         Defendant next challenges the legal sufficiency and weight of the evidence supporting the finding that he engaged in oral sexual conduct with the victim (see Penal Law § 130.50 [4]). This contention is unpreserved, as it was not specifically raised in defendant's trial motion to dismiss (see People v Novak, 148 A.D.3d 1352, 1353 [2017], lv denied 29 N.Y.3d 1084');">29 N.Y.3d 1084 [2017]). However, "in conducting our weight of the evidence review, we necessarily consider whether all of the elements of the charged crimes were proven beyond a reasonable doubt" (People v Thorpe, 141 A.D.3d 927, 928 [2016], lv denied 28 N.Y.3d 1031');">28 N.Y.3d 1031 [2016]).

         The victim testified that when she was 12 years old, she felt ill one morning and stayed home from school. She and defendant were alone in the house, and defendant asked about her illness. She told him that her chest hurt because it was congested, and defendant began to rub her breasts underneath her bra, including her nipples. The victim did not ask him to stop because she "was scared and very nervous and confused." Defendant then asked if he could rub her feet, and she agreed. However, he then moved his hand up her inner thigh, touched what she referred to as her "vagina" with his fingers, and then pulled her shorts and underwear aside and touched her vagina with his tongue. The victim stated that she began coughing to get away from defendant and went to her room. He followed her, apologized and left. The victim called her mother, asked her to come home and, upon her arrival, told her what had happened. The victim's mother testified that the victim told her that defendant had sexual contact with her and "just crumbled into the kitchen floor."

         A State Police investigator testified that, later that day, he met with defendant, who told the investigator that he had touched the victim's breasts underneath her clothing and had "massaged" her body, including her inner thighs and her pubic hair. He claimed that this conduct was part of a therapeutic massage, but acknowledged that he was not a masseur. He denied penetrating the victim's vagina but admitted that he had touched her vagina and her pubic hair with his hand and fingers. He denied that he had touched the victim's vagina with his tongue or mouth, but stated that he had "blown" or "breathed heavy" on the victim's inner thigh. The jury was entitled to credit the victim's testimony regarding defendant's oral sexual conduct despite defendant's denial, and we find that the verdict was not against the weight of the evidence (see People v Monroe, 134 A.D.3d 1138, 1139-1140 [2015]; People v Artis, 90 A.D.3d 1240, 1240 [2011], lv denied 18 N.Y.3d 955');">18 N.Y.3d 955 [2012]).

         Defendant next asserts that County Court erred in denying his motion to suppress his statements to the investigator on the ground that defendant's waiver of his Miranda rights was not intelligent, voluntary and knowing. The investigator testified at the suppression hearing that he and another officer approached defendant while he was playing golf; the investigator was wearing plain clothes, and the other officer was in uniform. They asked defendant if he would accompany them to the station, and he agreed to do so. The investigator asked if defendant would prefer to ride in the officers' marked police car, and defendant accepted a ride to the station. He was not placed in handcuffs during the one- or two-minute trip. The ensuing interview, which was not recorded, took place in the investigator's office. According to the investigator, defendant sat in the seat nearest to the closed door and accepted a bottle of water before the investigator read him his Miranda rights. He then acknowledged that he understood these rights and agreed to speak with the investigator. The investigator stated that defendant did not ask to leave, refuse to answer questions or ask for an attorney during the conversation, which lasted about 30 minutes. Defendant initially agreed to the investigator's request for a written statement and initialed his Miranda rights on a printed form after the investigator reread them to him. However, defendant then refused to sign the form and asked for the questioning to end, at which point the investigator placed him under arrest. Defendant told the investigator that he had consumed some alcohol that day and had taken some pain medication for a sore leg, but did not specify how much. The investigator testified that he was experienced in recognizing signs that a person was under the influence of various substances and that defendant did not seem to be intoxicated or impaired.

         After considering the totality of these circumstances, including "the location, length and atmosphere of the questioning, whether police significantly restricted defendant's freedom of action, the degree of defendant's cooperation, and whether the questioning was accusatory or investigatory" (People v Pagan, 97 A.D.3d 963, 966 [2012], lv denied 20 N.Y.3d 934');">20 N.Y.3d 934 [2012]), we agree with County Court that the People established that an innocent person would not have believed that he or she was in custody during the interview and, thus, defendant's statements were not made during a custodial interrogation (see People v Yukl, 25 N.Y.2d 585, 591-592 [1969], cert denied 400 U.S. 851');">400 U.S. 851 [1970]; People v Eriksen, 145 A.D.3d 1110, 1112 [2016], lvs denied 28 N.Y.3d 1183, 1186 [2017]; People v Henry, 114 A.D.3d 1025, 1027 [2014], lv dismissed 22 N.Y.3d 1199');">22 N.Y.3d 1199 [2014]). Accordingly, defendant's suppression motion was properly denied. [1]

         Defendant's contention that he was denied a fair trial by improper prosecutorial comments during summation is unpreserved, as his counsel failed to make timely objections (see People v Rivera, 124 A.D.3d 1070, 1074-1075 [2015], lvs denied26 N.Y.3d 971');">26 N.Y.3d 971 [2015]), and we decline to take corrective action in the interest of justice. Defendant's related claim of ineffective assistance of counsel arising from the failure to preserve this issue is without merit, as the challenged remarks constituted fair comment on the evidence, and any related objections would have been unlikely ...

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