Opinion
2013-10-4
The PEOPLE of the State of New York, Respondent, v. Gregory A. JONES, Defendant–Appellant.
Joseph T. Jarzembek, Buffalo, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
Joseph T. Jarzembek, Buffalo, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of predatory sexual assault against a child (Penal Law § 130.96). We reject defendant's contention that Supreme Court erred in refusing to suppress statements that he made to the police on the ground that he was in custody at the time and had not been administered Miranda warnings. The court properly determined that “a reasonable person in defendant's position, innocent of any crime, would not have believed that he or she was in custody, and thus Miranda warnings were not required” ( People v. Lunderman, 19 A.D.3d 1067, 1068, 796 N.Y.S.2d 481,lv. denied5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743;see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172,cert. denied400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89). Even assuming, arguendo, that defendant preserved for our review his further contention that his statements to the police were obtained in violation of his right to counsel, we conclude that he thereafter waived that contention inasmuch as he conceded during the suppression hearing that the police ceased questioning him immediately after he requested a lawyer ( see generally People v. Harris, 97 A.D.3d 1111, 1112, 948 N.Y.S.2d 512,lv. denied19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111).
Contrary to defendant's contention, the unsworn testimony of the seven-year-old victim was sufficiently corroborated by “evidence tending to establish the crime and connecting defendant with its commission” ( People v. Groff, 71 N.Y.2d 101, 104, 524 N.Y.S.2d 13, 518 N.E.2d 908), including evidence of defendant's opportunity to commit the crime, the testimony of other witnesses, and the victim's description of a pornographic video that was found on defendant's computer. “Strict corroboration of every material element of the charged crime is not required, as the purpose of corroboration is to ensure the trustworthiness of the unsworn testimony rather than [to] prove the charge itself” ( People v. Kolupa, 59 A.D.3d 1134, 1135, 872 N.Y.S.2d 831,affd.13 N.Y.3d 786, 887 N.Y.S.2d 536, 916 N.E.2d 430 [internal quotation marks omitted]; see People v. Petrie, 3 A.D.3d 665, 667, 771 N.Y.S.2d 242).
Finally, we reject defendant's contention that he was denied effective assistance of counsel. “[T]he evidence, the law and the circumstances of [this] case, viewed together and as of the time of representation, reveal that meaningful representation was provided” ( People v. Satterfield, 66 N.Y.2d 796, 798–799, 497 N.Y.S.2d 903, 488 N.E.2d 834;see generally People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.