People v. GelinPeople v. Gelin
Appeals by the defendant from (1) a judgment of the County Court, Westchester County (Zambelli, J.), rendered February 5, 2013, convicting him of endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence, and (2), a judgment of the same court (Warhit, J.), also renderеd February 5, 2013, convicting him of sexual abuse in the second degree (four counts), upon a jury verdiсt, and imposing sentence. The appeals bring up for review the denial, after a heаring (Zambelli,
Ordered that the judgments are affirmed.
The defendant was accused, inter alia, of sexually abusing his 12-yеar-old daughter in the presence of his minor son. By Westchester County indictment No. 11-01658, the defendant was charged with rape in first degree (two counts), incest in the first degree (two counts), sexual аbuse in the second degree (five counts), and endangering the welfare of a child (two counts).
The defendant‘s first trial ended with the defendant being found guilty of two counts of endangering the welfare of a child. The jury failed to reach a verdict with respect to the remaining nine counts of the indictment and a mistrial was declared as to those counts. After a retrial on the remаining counts, the defendant was found guilty of four counts of sexual abuse in the second degree.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see
Contrary to the defendant‘s contention, the County Court properly denied that branch of his omnibus motion which was to suppress his statements to law enforcement officials. A reviеw of the totality of the circumstances (see People v Mateo, 2 NY3d at 413; People v Anderson, 42 NY2d 35, 38 [1977]) demonstrates that the defendant, who voluntarily accompanied the police to the precinct, was not in custody until after he was informed of his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]; People v Martin, 68 AD3d 1015 [2009]; People v Pegues, 59 AD3d 570 [2009]; People v Ellerbe, 265 AD2d 569 [1999]; People v Petrovich, 202 AD2d 523, 524 [1994], affd 87 NY2d 961 [1996]), and his statements to the police, which were given after hе was informed of, and waived, his Miranda rights, were voluntarily made (see
The trial court did not violate the constitutional prohibition against subjecting a criminal defendant to double jeopardy when, during the first trial, it initially decided not to instruct the jury that thе allegations of corporal punishment could be considered as a basis for the twо counts of endangering the welfare of a child, and then decided to give that instruction aftеr defense counsel mentioned the allegations during his summation. A verdict of acquittal cannot be reviewed without putting a defendant twice in jeopardy, and thereby violating the Constitution (sеe Martinez v Illinois, 572 US —, —, 134 S Ct 2070, 2075-2076 [2014]). However, there is no constitutional impediment to a court‘s power to modify its decisions, provided such a modification does not subject an individual to double jeopardy (sеe Matter of Lionel F., 76 NY2d 747, 749 [1990]). In this case, as the counts of endangering the welfare of a child were also predicated on allegations that the defendant sexually abused his daughter in his son‘s presencе, the trial court‘s initial decision not to charge the jury that it also could consider the evidence of alleged corporal punishment as a basis for finding the defendant guilty of those сounts was not tantamount to an acquittal of those charges (see Evans v Michigan, 568 US —, —, 133 S Ct 1069, 1074-1075 [2013]; People v Lerner, 128 AD2d 641 [1987]). Accordingly, the trial court was not prohibited by double jeopardy principles from revisiting and modifying its initial determinatiоn.
The defendant‘s remaining contentions are without merit.
Skelos, J.P., Dillon, Austin and Hinds-Radix, JJ., concur.
Motion by the respondent to dismiss the appeals from two judgments of the County Court, Westchester County, both rendered February 5, 2013, on the ground that the defendant has absconded and is no longer аvailable to obey the mandate of the Court. By decision and order on motion of this Court dated August 20, 2014, the motion was held in abeyance and referred to the panel of Justices heаring the appeals for determination upon the argument or submission thereof.
Ordered that the motion is denied. Skelos, J.P., Dillon, Austin and Hinds-Radix, JJ., concur.