PEOPLE v. LIMBU (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephanie Zaro, J.), rendered July 25, 2019, convicting him of predatory sexual assault against a child, criminal sexual act in the first degree, incest in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly determined that the People would be able to use the defendant's prior illegally-obtained statements as impeachment evidence should the defendant decide to testify.  Where a statement is “obtained in violation of any aspect of a defendant's Miranda rights” (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), the statement is not admissible as evidence-in-chief but may still be used “to impeach a defendant who chooses to take the stand and whose testimony is inconsistent with his illegally obtained statement” (People v. Maerling, 64 N.Y.2d 134, 140, 485 N.Y.S.2d 23, 474 N.E.2d 231).  If such a statement “is voluntary, it may be used for impeachment purposes;  but if a statement is involuntary, it will not be admissible, even if it may be deemed reliable” (People v. Wilson, 28 N.Y.3d 67, 72, 41 N.Y.S.3d 466, 64 N.E.3d 286).

Here, although the defendant admitted at his interrogation that he did not speak English well, he demonstrated a general understanding of the English language and was not subjected to any legal or physical coercion.  Throughout the interrogation, the defendant often used terms the officers had not used, elaborated on his answers unprompted, and demonstrated an understanding of the consequences of what he was saying.  Accordingly, the defendant was a willing participant in the interrogation and his statements were the product of “rational intellect” and “free will” (Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 57 L.Ed.2d 290 [emphasis and internal quotation marks omitted]).

The defendant's contention that certain counts of the indictment were multiplicitous is unpreserved for appellate review, and, under the circumstances of this case, we decline to review it in the exercise of our interest of justice jurisdiction (see People v. O'Sullivan, 211 A.D.3d 751, 753, 177 N.Y.S.3d 914;  People v. Maitland, 159 A.D.3d 524, 525, 72 N.Y.S.3d 67).

The defendant failed to preserve for appellate review his contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see People v. Moncayo, 195 A.D.3d 750, 750, 144 N.Y.S.3d 871).  In any event, the record fails to establish that the court penalized the defendant for exercising his right to proceed to trial (see People v. Cruz, 137 A.D.3d 1158, 1160, 27 N.Y.S.3d 643).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

IANNACCI, J.P., GENOVESI, FORD and WAN, JJ., concur.