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

The PEOPLE of the State of New York, Respondent, v. Thomas H. STABB Jr., Appellant.

Decided: July 22, 2004

Before:  MERCURE, J.P., CREW III, CARPINELLO, LAHTINEN and KANE, JJ. John A. Cirando, Syracuse, for appellant. Donald F. Cerio Jr., District Attorney, Wampsville (Melissa C. Stearns of counsel), for respondent.

Appeal from a judgment of the County Court of Madison County (Di Stefano, J.), rendered January 29, 2002, upon a verdict convicting defendant of the crimes of sodomy in the third degree (two counts) and endangering the welfare of a child.

Defendant, who was 21 years old, allegedly befriended the 15-year-old victim and invited him to spend a night at his home on November 9, 2000.   During that night, defendant reportedly initiated oral sex and anal sex with the victim.   On November 21, 2000, the victim informed his mother of what had occurred and she contacted the police.   Later that day, Police Officer Michael McCarthy, after informing defendant of his Miranda rights, obtained a signed statement in which defendant acknowledged, among other things, engaging in oral and anal sex with the victim.

Defendant was indicted on three counts of sodomy in the third degree 1 and one count of endangering the welfare of a child.   Following a combined Huntley/Dunaway/Mapp hearing, County Court denied defendant's motion to suppress his statement to police and physical evidence that was seized.   After the prosecution presented its case at trial, the court dismissed the first count of sodomy charged in the indictment.   The jury found defendant guilty of the remaining two counts of sodomy, as well as endangering the welfare of a child.   He was sentenced to a total of one year in jail on all counts.   Defendant appeals.

 Defendant's initial contention that there was a prearrest delay that deprived him of due process is devoid of merit.   The alleged conduct occurred on November 9, 2000 and police were first notified on November 21, 2000.   Defendant was arrested later that same day.   This is not a case of protracted delay over a period of years that might implicate due process (see People v. Singer, 44 N.Y.2d 241, 254, 405 N.Y.S.2d 17, 376 N.E.2d 179 [1978] ).   Nor was this a situation of unwarranted delay in arraignment such that the delay could be a factor in assessing whether defendant's confession was voluntary (see People v. Seeber, 4 A.D.3d 620, 622, 772 N.Y.S.2d 122 [2004];  see also People v. Ramos, 99 N.Y.2d 27, 33-34, 750 N.Y.S.2d 821, 780 N.E.2d 506 [2002] ).   Furthermore, McCarthy was not required, as defendant urges, to immediately arrest him based solely on the victim's statement, as it was proper under the circumstances for McCarthy to speak with defendant (who had been informed of his Miranda rights) and obtain his statement before placing him under arrest (see People v. Jansson, 305 A.D.2d 942, 944, 760 N.Y.S.2d 259 [2003] ).

 Defendant's challenge to the sufficiency of the indictment was not preserved since it was not raised in his pretrial motion (see People v. DiRoma, 251 A.D.2d 1063, 672 N.Y.S.2d 829 [1998], lv. denied 92 N.Y.2d 949, 681 N.Y.S.2d 479, 704 N.E.2d 232 [1998];  People v. Morey, 224 A.D.2d 730, 731, 637 N.Y.S.2d 500 [1996], lv. denied 87 N.Y.2d 1022, 644 N.Y.S.2d 156, 666 N.E.2d 1070 [1996] ).   Even if we were to consider the argument, we would find it meritless since each count of the indictment identified the statute under which defendant was being charged and set forth the alleged acts constituting every material element as well as the date of the conduct (see People v. Iannone, 45 N.Y.2d 589, 598-600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ).   Moreover, to the extent that defendant contends that counts one and two were multiplicitous, the dismissal by County Court of the first count renders such argument academic (see People v. Nailor, 268 A.D.2d 695, 696 n. 1, 701 N.Y.S.2d 476 [2000];  People v. Demetsenare, 243 A.D.2d 777, 779-780, 663 N.Y.S.2d 299 [1997], lv. denied 91 N.Y.2d 833, 667 N.Y.S.2d 687, 690 N.E.2d 496 [1997] ).

 Next, we turn to the argument that the verdict was not supported by legally sufficient evidence.  “The standard for reviewing the legal sufficiency of evidence in a criminal case is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983], quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 [1979] [emphasis omitted] ).   Here, each of the elements of the crimes of which defendant was convicted were established by the evidence at trial, including the victim's testimony and defendant's confession to police.   Moreover, viewing the evidence in a neutral light and giving due deference to the jury's credibility determinations, we find the verdict was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

The remaining arguments have been considered and found unpersuasive.

ORDERED that the judgment is affirmed.


1.   Now known as criminal sexual act in the third degree (see L. 2003 ch. 264, § 18;  see also Penal Law § 130.40).



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