PEOPLE v. CABALLERO (2005)

 On appeal from a judgment convicting him, after a jury trial, of sodomy in the first degree (Penal Law former § 130.50 [3] ), sexual abuse in the first degree (§ 130.65[3] ) and endangering the welfare of a child (§ 260.10[1] ), defendant contends that County Court erred in denying the motion to suppress his written statement as the fruit of unlawful pre-Miranda questioning.   Defendant failed to preserve for our review his contention that his pre-Miranda conversation with the police constituted custodial interrogation by failing to raise that specific contention in his motion papers or at the hearing (see CPL 470.05[2];  People v. Jacquin, 71 N.Y.2d 825, 826-827, 527 N.Y.S.2d 728, 522 N.E.2d 1026;  see also People v. Myers, 1 A.D.3d 382, 383, 766 N.Y.S.2d 581, lv. denied 1 N.Y.3d 631, 777 N.Y.S.2d 30, 808 N.E.2d 1289;  People v. Martinez, 287 A.D.2d 654, 731 N.Y.S.2d 872, lv. denied 97 N.Y.2d 757, 742 N.Y.S.2d 618, 769 N.E.2d 364).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Contrary to defendant's further contention, the People met their burden of proof at the Huntley hearing.  “Where, as here, the People have initially demonstrated the legality of the police conduct and defendant's waiver, the burden of persuasion on the motion to suppress rests with defendant” (People v. Shields, 125 A.D.2d 863, 864, 510 N.Y.S.2d 218, lv. denied 69 N.Y.2d 955, 516 N.Y.S.2d 1039, 509 N.E.2d 374;  see People v. Drumm, 15 A.D.3d 910, 788 N.Y.S.2d 756, lv. denied 4 N.Y.3d 853, 797 N.Y.S.2d 427, 830 N.E.2d 326).   Defendant failed to meet that burden.  “Defendant ‘presented no bona fide factual predicate which demonstrated that [the apprehending officers] possessed material evidence on the question of whether the statements were the product of overtly or inherently coercive methods, [and thus] the People could meet their burden through the testimony of the [investigating officer] who elicited [the written statement]’ ” (Drumm, 15 A.D.3d at 910-911, 788 N.Y.S.2d 756, quoting People v. Witherspoon, 66 N.Y.2d 973, 974, 498 N.Y.S.2d 789, 489 N.E.2d 758).

 Defendant also contends that reversal is required because the jury may have convicted him of an unindicted crime and different jurors may have convicted him based on different acts.   We reject that contention.   Although the victim testified that defendant committed the criminal acts on more than 10 occasions, “the court's charge to the jury eliminated any ‘danger that the jury convicted defendant of an unindicted act or that different jurors convicted defendant based on different acts' ” (People v. Gerstner, 270 A.D.2d 837, 838, 706 N.Y.S.2d 542, quoting People v. Whitfield, 255 A.D.2d 924, 682 N.Y.S.2d 741, lv. denied 93 N.Y.2d 981, 695 N.Y.S.2d 67, 716 N.E.2d 1112;  cf. People v. McNab, 167 A.D.2d 858, 562 N.Y.S.2d 590;  see generally People v. Mathis, 8 A.D.3d 966, 967, 778 N.Y.S.2d 613, lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 37, 818 N.E.2d 679;  People v. Alston, 275 A.D.2d 997, 714 N.Y.S.2d 252, lv. denied 96 N.Y.2d 756, 725 N.Y.S.2d 282, 748 N.E.2d 1078;  People v. Drayton, 198 A.D.2d 770, 605 N.Y.S.2d 723;  People v. Curtis, 195 A.D.2d 968, 969, 601 N.Y.S.2d 39, lv. denied 82 N.Y.2d 752, 603 N.Y.S.2d 994, 624 N.E.2d 180).

 Finally, we reject defendant's contention that the failure to record the interrogation electronically requires reversal (see People v. Oglesby, 15 A.D.3d 888, 889, 788 N.Y.S.2d 793, lv. denied 4 N.Y.3d 855, 797 N.Y.S.2d 429, 830 N.E.2d 328;  People v. Martin, 294 A.D.2d 850, 741 N.Y.S.2d 763, lv. denied 98 N.Y.2d 711, 749 N.Y.S.2d 9, 778 N.E.2d 560;   People v. Falkenstein, 288 A.D.2d 922, 923, 732 N.Y.S.2d 817, lv. denied 97 N.Y.2d 704, 739 N.Y.S.2d 104, 765 N.E.2d 307).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: