People v. Kolupa

59 A.D.3d 1134, 872 N.Y.S.2d 831

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2009
• Status: Published

Opinions

Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered March 30, 2006. The judgment convicted defendant, upon a jury verdict, of attempted rape in the first degree, sexual abuse in the first degree, criminal sexual act in the first degree, attempted sexual abuse in the first degree and endangering the welfare of a child.

It is hereby ordered that the judgment so appealed from is modified as a matter of discretion in the interest of justice by directing that the sentences imposed on counts one through four of the indictment shall run concurrently with respect to each other and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia, criminal sexual act in the first degree (Penal Law § 130.50 [3]) and attempted rape in the first degree (§§ 110.00, 130.35 [3]). Contrary to defendant’s contention, the unsworn testimony of the seven-year-old victim was sufficiently corroborated by evidence of defendant’s opportunity, the testimony concerning defendant’s statements to the police and the testimony of other witnesses (see generally People v Groff, 71 NY2d 101, 109-110 [1987]). “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 Petrie, 3 AD3d 665, 667 [2004]; see Groff, 71 NY2d at 108-110).

Contrary to the further contention of defendant, County Court properly determined that a police officer’s alleged promise to charge defendant with a misdemeanor, issue him an appearance ticket and release him did not render his statements to the police inadmissible pursuant to CPL 60.45 (2) (b) (i). Inasmuch as some of defendant’s inculpatory statements were made before the alleged promise was given, we conclude that there is no risk that the promise caused defendant to incriminate himself falsely (see generally People v Carrillo, 257 AD2d 780, 782-783 [1999], Iv denied 93 NY2d 967 [1999]). In any event, considering the totality of the circumstances in this case (see People v Anderson, 42 NY2d 35, 38 [1977]), we conclude that the alleged promise that defendant would be charged with a misdemeanor, issued an appearance ticket and released is not one that created a substantial risk of false incrimination during the course of the two-hour interview with the police (see People v Williamson, 245 AD2d 966, 967-968 [1997], lv denied 91 NY2d 946 [1998]; People v Hamelinck, 222 AD2d 1024 [1995], lv denied 87 NY2d 921 [1996]; see also People v Alexander, 51 AD3d 1380, 1381-1382 [2008], lv denied 11 NY3d 733 [2008]).

Finally, we reject defendant’s contention that the sentences imposed on the counts of attempted rape in the first degree and sexual abuse in the first degree must run concurrently as a matter of law (see generally People v Rosas, 8 NY3d 493, 496-497 [2007]; People v Laureano, 87 NY2d 640, 643 [1996]). We conclude, however, that the imposition of consecutive sentences with respect to counts one through four of the indictment renders the sentence unduly harsh and severe. We therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences imposed on those counts shall run concurrently with respect to each other (see CPL 470.15 [6] [b]).

All concur except Martoche, J.E, and Centra, J., who dissent in part in accordance with the following memorandum.