People v. Concepcion

175 A.D.2d 324, 572 N.Y.S.2d 940, 1991 N.Y. App. Div. LEXIS 9550
Appellate Division of the Supreme Court of the State of New York·Decided July 11, 1991·Published·Cited by 21 cases

Opinion

Weiss, J.

Appeal from a judgment of the County Court of Sullivan County (Hanofee, J.), rendered September 21, 1989, upon a verdict convicting defendant of the crime of sexual abuse in the first degree.

Defendant was accused of molesting a 14-year-old girl during a purported religious baptismal ceremony in her parents’ [325]*325apartment in a darkened bedroom while she was alone with him and blindfolded. The first incident involved a fondling and kissing of her breasts, leaving her confused, nervous and frightened. Shortly thereafter defendant authoritatively directed the girl to return to the darkened room alone, closed the door and again blindfolded her. It was alleged that the molestation progressed further with defendant having increased illicit sexual contact with her breasts and vagina, and that the girl fled the room and apartment in terror. The victim sought help at the home of a girlfriend whose father, a Deputy Sheriff, contacted the victim’s parents.

During the course of the investigation, defendant had complied with a request from the police to come to the police station for questioning and, after making some potentially incriminating statements, he was permitted to leave. Defendant was then charged with two counts of sexual abuse in the first degree and convicted by a jury on the first count but acquitted on the second. On appeal from the conviction, this court found that County Court had erred in failing to hold a suppression hearing. We withheld determination of the appeal and remitted the matter for a suppression hearing (169 AD2d 944). Following the hearing, County Court held that defendant had been properly advised of his rights and voluntarily waived them. The court further found defendant’s statement that "I have to talk to someone else about the situation” was only a reference to his inability to remember what had happened during the "religious” ceremony when the alleged illicit sexual contact occurred and that someone would have to tell him what had taken place. The appeal is now back in this court for disposition.

Defendant now contends that he was, in effect, seeking a legal consultation which required that the police cease all questioning. County Court found that while the remark was ambiguous, there was no suggestion that defendant was seeking legal advice or the assistance of an attorney. We accord great weight to the determination of the suppression court which had the advantage of having seen and heard the witnesses (see, People v Prochilo, 41 NY2d 759; see also, People v Melendez, 160 AD2d 818). Here the record fully supports the finding that defendant did not request legal counsel and that his strained interpretation is unsupported.

We then turn to the unresolved issues raised previously on appeal. As part of the People’s direct case, Alphonse Gilmore, the girlfriend’s father to whom the victim described what had occurred, was permitted over specific objection to testify as to [326]*326the victim’s words related to him some 15 to 20 minutes after the second incident. At the request of the People, County Court preliminarily instructed the jury that the testimony was not oifered as evidence of the truth of the content, but only to show that the statements were made. The People never provided a specific reason

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People v. Concepcion, 175 A.D.2d 324, 572 N.Y.S.2d 940, 1991 N.Y. App. Div. LEXIS 9550 (N.Y. Ct. App. 1991).

175 A.D.2d 324 (People v. Concepcion) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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