Opinion
2013-12-27
The PEOPLE of the State of New York, Respondent, v. Donald HUGHES, Defendant–Appellant.
Frank Policelli, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox Of Counsel), for Respondent.
Frank Policelli, Utica, for Defendant–Appellant.Scott D. McNamara, District Attorney, Utica (Steven G. Cox Of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of one count each of attempted criminal sexual act in the first degree (Penal Law §§ 110.00, 130.50[4] ) and course of sexual conduct against a child in the second degree (§ 130.80[1][b] ), and three counts of sexual abuse in the first degree (§ 130.65[3] ). Defendant contends that County Court erred in refusing to suppress his statement to the police on the ground that he gave the statement involuntarily. We reject that contention. A statement “is ‘involuntarily made’ when it is obtained by [the police] by means of any promise or statement of fact which creates a substantial risk that the defendant might falsely incriminate himself” (People v. Mateo, 2 N.Y.3d 383, 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828). “To determine voluntariness, courts review all of the surrounding circumstances to see whether the defendant's will has been overborne” ( id.; see People v. Collins, 106 A.D.3d 1544, 1545, 964 N.Y.S.2d 393, lv. denied21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146).
Here, the evidence at the Huntley hearing, including the videotaped interrogations, establishes that defendant's statement was voluntarily made and that coercive police activity did not occur ( see Mateo, 2 N.Y.3d at 414, 779 N.Y.S.2d 399, 811 N.E.2d 1053). The fact that defendant was told that he failed a polygraph examination did not render the statement involuntary ( see People v. Ellis, 73 A.D.3d 1433, 1434, 903 N.Y.S.2d 615, lv. denied15 N.Y.3d 851, 909 N.Y.S.2d 28, 935 N.E.2d 820; People v. Melendez, 149 A.D.2d 918, 918–919, 540 N.Y.S.2d 51). Defendant's claim that he was under duress and confused because of an illness is not supported by the evidence at the Huntley hearing. In arguing otherwise, defendant improperly relies on his testimony at trial ( see People v. McCurty [Appeal No. 2], 60 A.D.3d 1406, 1407, 875 N.Y.S.2d 718, lv. denied12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591).
We conclude that the sentence is illegal insofar as it imposes a 20–year period of postrelease supervision for attempted criminal sexual act in the first degree ( seePenal Law § 70.45[2–a][e] ). “ ‘Although [that] issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v. Davis, 37 A.D.3d 1179, 1180, 829 N.Y.S.2d 791, lv. denied8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663). We therefore modify the judgment by reducing the period of postrelease supervision on the first count of the indictment to a period of 15 years. The sentence as modified is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the period of postrelease supervision imposed on the first count of the indictment to a period of 15 years and as modified the judgment is affirmed.