PEOPLE v. JANSSON

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. David JANSSON, Appellant.

Decided: May 29, 2003

Before:  CARDONA, P.J., MERCURE, CREW III, CARPINELLO and ROSE, JJ. Kurt Mausert, Saratoga Springs, for appellant. Robert M. Winn, District Attorney, Fort Edward, for respondent.

Appeal from a judgment of the County Court of Washington County (Hemmett Jr., J.), rendered May 29, 2002, convicting defendant upon his plea of guilty of the crimes of sodomy in the first degree and course of sexual conduct against a child in the first degree.

In satisfaction of a 33-count indictment charging him with various sex-related offenses, defendant pleaded guilty to sodomy in the first degree, based on allegations that he had engaged in deviate sexual intercourse with a preschool-aged girl,1 and course of sexual conduct against a child in the first degree, based on allegations that he had engaged in numerous acts of inappropriate sexual contact with an 11-year-old girl.   The plea was entered into by defendant with the understanding that the recommended sentence would be concurrent 20-year prison terms.   Sentenced accordingly, defendant now appeals.

 We are unpersuaded by defendant's claim that County Court erred in denying a motion to suppress his written statement to police on the ground that the police lacked probable cause to arrest him.   At the Huntley hearing, it was established that the younger of defendant's two victims (see n 1, supra ) gave an oral statement to State Police Investigator Mary DeSantis on the evening of December 2, 2001 detailing acts of sexual contact between herself and defendant during the previous 24-hour period.   In addition to interviewing the victim at this time, DeSantis also interviewed her aunt, to whom the sexual activity had been disclosed, and her mother.

Shortly after interviewing the victim, DeSantis discussed the matter with her superior, State Police Senior Investigator Thomas Aiken, who proceeded to the home of defendant's brother to question defendant.2  While en route, Aiken was advised that defendant had just left the residence and was traveling in a specific direction on a specific roadway.   At Aiken's direction, another state trooper followed defendant a short distance and then proceeded to pull him over by activating his emergency lights.   Aiken arrived within seconds, informed defendant that he “had some serious things” to talk to him about and inquired if defendant would be willing to accompany him to his “office.”   Defendant agreed, accompanied Aiken to a nearby State Police barracks and, thereafter, upon waiving Miranda rights, gave a detailed, written statement confessing to many instances of sexual contact with the victims.

 The trooper who pulled defendant over was justified in doing so even though defendant had not been observed committing any Vehicle and Traffic Law violation, as the accusations leveled against him by the youngest victim most assuredly supplied the police with probable cause to arrest (see People v. Berzups, 49 N.Y.2d 417, 427, 426 N.Y.S.2d 253, 402 N.E.2d 1155 [1980];  People v. Leath, 273 A.D.2d 410, 411, 711 N.Y.S.2d 328 [2000], lv. denied 95 N.Y.2d 891, 715 N.Y.S.2d 383, 738 N.E.2d 787 [2000];  People v. Green, 154 A.D.2d 548, 546 N.Y.S.2d 388 [1989], lv. denied 74 N.Y.2d 948, 550 N.Y.S.2d 283, 549 N.E.2d 485 [1989];  see also People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001];  People v. Bigelow, 66 N.Y.2d 417, 422, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ).   That the police may have delayed in obtaining an arrest warrant so as to question defendant in the absence of counsel does not mandate suppression of his statement (see People v. Anderson, 290 A.D.2d 658, 658-659, 736 N.Y.S.2d 720 [2002], lv. denied 97 N.Y.2d 750, 742 N.Y.S.2d 610, 769 N.E.2d 356 [2002];  People v. Wheeler, 227 A.D.2d 980, 643 N.Y.S.2d 450 [1996], lv. denied 88 N.Y.2d 1025, 651 N.Y.S.2d 24, 673 N.E.2d 1251 [1996];  People v. Counts, 214 A.D.2d 897, 625 N.Y.S.2d 697 [1995], lvs. denied 86 N.Y.2d 792, 632 N.Y.S.2d 506, 656 N.E.2d 605, 86 N.Y.2d 800, 632 N.Y.S.2d 514, 656 N.E.2d 613 [1995] ).   Finally, the Huntley hearing testimony confirms that defendant voluntarily accompanied Aiken to the barracks, that he was not physically restrained at any time and that he knowingly waived his Miranda rights and agreed to speak with Aiken in the absence of counsel.   In a nonconfrontational setting, defendant readily admitted to the younger victim's allegations of sexual contact and also sua sponte offered up his inappropriate conduct with the older victim.   Under these circumstances, we are unpersuaded by the claim that this statement was taken in violation of any constitutional rights (see People v. Johnston, 273 A.D.2d 514, 515, 709 N.Y.S.2d 230 [2000], lv. denied 95 N.Y.2d 935, 721 N.Y.S.2d 612, 744 N.E.2d 148 [2000];  People v. Caviano, 194 A.D.2d 429, 430, 599 N.Y.S.2d 251 [1993], lvs. denied 82 N.Y.2d 892, 610 N.Y.S.2d 159, 632 N.E.2d 469 [1993], 83 N.Y.2d 803, 611 N.Y.S.2d 139, 633 N.E.2d 494 [1994] ).

 Only one of defendant's remaining contentions merits comment, namely his claim that the sentence is harsh and excessive.   Although defendant points to the fact that he has no prior criminal record, he has demonstrated genuine remorse for his actions and he has been deemed a suitable candidate for treatment, we ultimately reject these arguments for two compelling reasons.   First, defendant entered into the subject plea fully aware that the recommended sentence was indeed the maximum on each count.   Moreover, although defendant makes repeated references to his past “success” at self regulating his pedophiliac tendencies, we note that he engaged in “hundreds” of acts of sexual contact with one of his victims for several years, hardly the conduct of a successful self regulator.   We are particularly unimpressed with defendant's reliance on People v. Peters, 277 A.D.2d 512, 714 N.Y.S.2d 818 [2000] as support for a reduction of the sentence, a case concerning neither the seriousness of the instant charges nor deplorable conduct toward young victims.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   There is nothing in the record to confirm the precise age of this particular victim, although it is undisputed that she was either four or five years old at the time of the alleged offense.   Witness statements in the record conflict as to her age, and her date of birth is not recited in any document in the record.   Even the parties contradict each other on this point in their respective briefs.

2.   Aiken knew that defendant was likely to be present at his brother's home because State Trooper Todd McPhail, at Aiken's direction, had located defendant's vehicle there and was surveilling it.

CARPINELLO, J.

CARDONA, P.J., MERCURE, CREW III and ROSE, JJ., concur.

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