State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 5, 2015 105801
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ROBERT S. FISHER,
Appellant.
________________________________
Calendar Date: January 9, 2015
Before: McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.
__________
Stacey L. Gorman, Ballston Spa, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Jason M.
Carusone of counsel), for respondent.
__________
Egan Jr., J.
Appeal from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered September 23, 2008, upon a verdict
convicting defendant of the crimes of course of sexual conduct
against a child in the first degree, incest in the first degree,
rape in the second degree, incest in the second degree,
endangering the welfare of a child and sexual abuse in the second
degree (two counts).
In April 2008, defendant was charged in a multi-count
indictment with various sex crimes stemming from his ongoing
sexual relationship with victim A (born in 1995) between August
2007 and January 2008, as well as an encounter with victim B
(also born in 1995) that occurred in January 2008. Specifically,
defendant was charged with course of sexual conduct against a
-2- 105801
child in the first degree (victim A), incest in the first degree
(victim A), rape in the second degree (victim A), incest in the
second degree (victim A), endangering the welfare of a child
(victim A) and two counts of sexual abuse in the second degree
(victim B). In response to questioning by State Police,
defendant gave a detailed written statement, wherein he
recounted, among other things, the progression of his physical
relationship with victim A – a person to whom defendant knew he
was related – from touching to oral sex to repeated acts of
sexual intercourse over the course of many months. Defendant's
subsequent motion to suppress this statement was denied, and the
matter proceeded to trial. After hearing the testimony offered
by, among others, victims A and B, the jury found defendant
guilty of all charges. County Court thereafter sentenced
defendant to concurrent terms of imprisonment, including – with
respect to defendant's conviction of course of sexual conduct
against a child in the first degree – 20 years in prison followed
by 20 years of postrelease supervision. This appeal by defendant
ensued.
Defendant initially contends that County Court erred in
failing to suppress the written statement he gave to State Police
investigators in January 2008. We disagree. "The People bore
the burden of proving the voluntariness of defendant's
statement[] beyond a reasonable doubt, including that any
custodial interrogation was preceded by the administration and
defendant's knowing waiver of his Miranda rights. Determining
whether a statement is voluntary is a factual issue governed by
the totality of the circumstances [and] [t]he credibility
assessments of the suppression court in making that determination
are entitled to deference" (People v Mattis, 108 AD3d 872, 874
[2013], lvs denied 22 NY3d 957 [2013] [internal quotation marks
and citations omitted]).
Here, the State Police investigator who ultimately took
defendant's statement testified that, prior to questioning
defendant at the barracks, he advised defendant of his Miranda
rights; in response, defendant indicated that he understood his
rights and was willing to speak with the investigator. The
investigator then questioned defendant for approximately 2½
hours, during the course of which the investigator utilized his
-3- 105801
laptop to type defendant's written statement. When completed,
the printed statement was presented to defendant for his review.
In conjunction therewith, the investigator testified, he again
read the Miranda warnings out loud to defendant and asked
defendant to initial each line of the warnings if he understood;
defendant then initialed each line. Additionally, in order to
ensure that defendant could read, the investigator asked
defendant to recite the first line of the statement, which
defendant did without difficulty. Following this, defendant was
asked to review, sign and initial each page of the statement.
The investigator testified that, when defendant came to the final
page of the statement, he asked to make a correction; defendant
then drew a line through a small portion of his statement and
initialed that change.
Although defendant denied being apprised of his Miranda
warnings, contended that the investigator had already prepared a
written statement for him to sign prior to any questioning taking
place, insisted that he did not read the written statement,
claimed that he was not paying attention when the investigator
read portions of the statement to him and testified that he
signed/initialed the written statement only because he was
instructed to do so, this conflicting testimony presented a
credibility issue for County Court to resolve (see People v
Marshall, 65 AD3d 710, 711 [2009], lv denied 13 NY3d 940 [2010]).
Notably, defendant's insistence that he was not involved in the
preparation of his written statement and did not pay any
attention to the final product is belied by the statement itself
– a document that defendant signed four times, initialed no fewer
than 21 times and, as noted previously, made a correction
thereto. Accordingly, we discern no basis upon which to disturb
County Court's ruling in this regard.
Defendant next contends that the verdict convicting him of
each of the underlying crimes is against the weight of the
evidence. Again, we do not agree. As a starting point, to the
extent that the charged crimes contained specific age
requirements for the victims and/or defendant (see Penal Law §§
130.30 [1]; 130.35 [4]; 130.50 [4]; 130.60 [2]; 130.75 [1] [b];
255.26; 255.27), the information contained in defendant's
redacted written statement, which was admitted into evidence at
-4- 105801
trial, together with the testimony of victim A, her mother and
victim B, was sufficient to satisfy the age elements embodied in
the crimes at issue. Similarly, the evidence at trial
established that defendant was aware that he was related to
victim A to the degree required by the incest statutes (see Penal
Law §§ 255.26, 255.27).
With respect to the specific charges, victim A testified,
in detail and at length, that defendant began having sex with her
in late August 2007 or early September 2007 – a point in time
when victim A was 12 years old. Victim A testified as to the
progression of the relationship – from touching to oral sex to
sexual intercourse – and described both the locations and the
frequency with which such acts took place. Although noting that
defendant had intercourse with her "basically almost every chance
he got," victim A testified as to specific incidents of oral sex
and/or sexual intercourse that occurred between late 2007 and
early 2008, including Halloween, Thanksgiving, Christmas Eve and
her birthday. Victim A's mother confirmed that victim A was with
defendant on the holidays in question, and defendant's own
statement reflects that he "had sex with [victim A] about 20
separate times" between late summer and October 2007, in addition
to one act of sexual intercourse in January 2008. Upon
consideration of this evidence, and granting deference to the
jury's credibility determinations, we are satisfied that the jury
accorded the evidence the weight that it deserved. Accordingly,
we find no basis upon which to disturb defendant's conviction as
to the crimes charged with respect to victim A – specifically,
course of sexual conduct against a child in the first degree,
incest in the first degree, rape in the second degree, incest in
the second degree and endangering the welfare of a child.
We reach a similar conclusion as to the two counts of
sexual abuse in the second degree charged with respect to victim
B, which required the People to prove that defendant engaged in
sexual contact – defined as "any touching of the sexual or other
intimate parts of a person for the purpose of gratifying sexual
desire of either party" (Penal Law § 130.00 [3]) – with victim B
(see Penal Law § 130.60 [2]). Both victim A and victim B
recounted an incident that occurred during a sleepover with
victim A in January 2008 wherein defendant expressed a desire to
-5- 105801
have a "threesome" with them. Victim B testified that she
initially thought that defendant was kidding, but that defendant
thereafter grabbed her between her legs stating, "[I'll] be
getting some of that later." In an effort to stall for time,
victim B told defendant that she would not do anything with him
without a condom. Victim A, victim B and defendant then went to
a local grocery store to make that purchase. Upon returning from
the store, victim A, victim B and defendant proceeded to a
bedroom in the residence, at which time – victim B testified –
defendant engaged in sexual contact with her within the meaning
of the subject statute. Crediting the testimony offered by
victims A and B, as well as the admissions made by defendant in
his written statement, we are satisfied that the jury accorded
such evidence the weight that it deserved.
Defendant's remaining contentions do not warrant extended
discussion. To the extent that County Court erred in admitting
into evidence reference to an uncharged act of sexual intercourse
that occurred with victim A in Saratoga County, in light of the
overwhelming evidence of defendant's guilt, we deem any error in
this regard to be harmless (see People v Arafet, 13 NY3d 460, 467
2009]; People v Raucci, 109 AD3d 109, 120-121 [2013], lv denied
22 NY3d 1158 [2014]). As for defendant's claim that he was
denied the right to counsel of his choosing, we cannot say that
County Court abused its discretion in denying defendant's eve-of-
trial request for an adjournment in order retain a new attorney.
Nor do we find merit to defendant's ineffective assistance of
counsel claim. To the extent that defendant faults trial counsel
for failing to secure his testimony at the grand jury proceeding,
sufficiently confer with him prior to trial, adequately prepare
for the suppression hearing and/or engage in sufficient pretrial
motion practice, these claims involve matters outside of the
record and, as such, are more properly the subject of a CPL
article 440 motion (see People v Green, 119 AD3d 23, 31 [2014],
lv denied 23 NY3d 1062 [2014]; People v Toye, 107 AD3d 1149, 1152
[2013], lv denied 22 NY3d 1091 [2014]; People v Stroman, 106 AD3d
1268, 1271 [2013], lv denied 21 NY3d 1046 [2013]). As to the
balance of defendant's claim, the record reflects that trial
counsel "engaged in relevant motion practice, presented
appropriate opening and closing statements, effectively cross-
examined the People's witnesses and registered appropriate
-6- 105801
objections" (People v Cade, 110 AD3d 1238, 1242 [2013], lv denied
22 NY3d 1155 [2014]). Hence, we are satisfied that defendant
received meaningful representation (see People v Green, 119 AD3d
at 31; People v Cade, 110 AD3d at 1242; People v Toye, 107 AD3d
at 1152). Defendant's remaining arguments, including his
assertion that the sentence imposed is harsh and excessive, have
been examined and found to be lacking in merit.
McCarthy, J.P., Rose and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court