People v. Frank

186 A.D.2d 1062, 590 N.Y.S.2d 772, 1992 N.Y. App. Div. LEXIS 11692

Opinion

— Judgment unanimously affirmed. Memorandum: On appeal from numerous convictions arising out of his brutal sexual assaults upon two women in the City of Geneva, defendant contends that his sentence is excessive and that the court erred in denying suppression of his first, third and fourth statements to police (defendant’s second statement was suppressed as violative of his right to counsel).

The court did not abuse its discretion in sentencing defendant to an aggregate 8V2 to 25 V2 years for his calculated and predatory attacks. Further, the court properly denied suppression. With respect to the first statement, the record supports the suppression court’s finding that defendant was twice advised of his Miranda rights, and each time expressly indicated that he understood his rights, before being questioned. With respect to defendant’s third and fourth statements, the proof is uncontroverted that they were spontaneous and, as a matter of law, attenuated from the prior constitutional violation (see, People v Stoesser, 53 NY2d 648; People v Maerling, 46 NY2d 289, 302; see generally, Rhode Is. v Innis, 446 US 291, 300-301). (Appeal from Judgment of Ontario County Court, Henry, Jr., J. — Burglary, 2nd Degree.) Present — Denman, P. J., Pine, Lawton, Boehm and Davis, JJ.