Appeal from a judgment of the County Court of Albany County (Rosen, J.), rendered May 27, 1999, upon a verdict convicting defendant of the crimes of rape in the first degree (two counts), rape in the third degree (three counts), sodomy in the first degree (two counts), sodomy in the third degree (four counts) and endangering the welfare of a child.
On several occasions between September 1997 and June 1998, defendant, then aged 50, had sexual contact with a female child less than 17 years of age (hereinafter the victim). On July 6, 1998, the Town of Colonie Police Department (hereinafter the Department) received a referral from the Child Protective Hotline regarding the suspected abuse of the victim. She was subsequently interviewed by a counselor with the Juvenile Division of the Department along with Investigator Stephen Tanski. On the evening of July 8, 1998, Tanski and another officer went to defendant’s home to speak with him. Defendant agreed to accompany them to the police station and, while at the station, he began to make admissions. Tanski interrupted him and administered Miranda warnings from memory. Defendant thereafter provided extensive, detailed information concerning his contacts with the victim and later signed a three-page confession.
On August 25, 1998, a Supreme Court Grand Jury handed up a 12-count indictment charging defendant with two counts of rape in the first degree, three counts of rape in the third degree, two counts of sodomy in the first degree, four counts of sodomy in the third degree and оne count of endangering the welfare of a child. Following his arraignment in County Court, a Huntley hearing was held at which Tanski testified to the circumstances under which defendant’s statement was obtained; County Court denied defendant’s motion to suppress.
After a jury trial, defendant was convicted of all charges and was sentenced to determinate prison terms of 20 years each on
We first address defendant’s contention that the transfer of his indictment from Supreme Court to County Cоurt, by order dated August 25, 1998, contravenes NY Constitution, article VI, § 11.
Next, defendant asserts that his written confession should have been suppressed because Tanski did not read him his Miranda warnings from a written form and, therefore, the People failed to meet their burden of proving that proper warnings were received before defendant waived his constitutional rights. There is no rule, statutory or otherwise, requiring that Miranda warnings be read to а suspect. With no dispute that oral warnings were provided, we find no error, giving proper weight to County Court’s determination that the full panoply of Miranda warnings were, in fact, administered (see, People v Vaughn,
We similarly reject defendant’s contention that the People failed to present legally sufficient evidence to support one count each of rape in the first degree and sodomy in the first degree
To be sure, forcible compulsion is not synonymous with violence and can be inferred by events surrounding the sexual interaction between defendant and the victim (see, People v Gonzalez,
We further find no merit to defendant’s claim that the verdict convicting him of sodomy in the third degree (see, Penal Law § 130.40 [2]) was against the weight of the evidence. Our independent review of the evidence presentеd (see, People v White,
Defendant’s convictions for rape in the third degree (see, Penal Law § 130.25 [2]) must, however, be reversed. As the People concede, counts 2, 6 and 11 of the indictment, charging rape in the third degree, failed to plead the inapplicability of the marital еxemption.
As to the sentence, we agree with defendant’s assertion that he must be resentenced on the nonviolеnt convictions because County Court impermissibly imposed determinate sentences. The convictions challenged were pursuant to counts 2, 4, 6, 8, 9, 10 and 11 of the indictment. As we have determined that counts 2, 6 and 11 allеging rape in the third degree must be dismissed, we shall address the ascription of error concerning counts 4, 8, 9 and 10. On each such count, defendant was convicted of a class E felony and was sentenced by County Court as a second felony offender to determinate prison terms of four years to run concurrent with each other and with the prison terms imposed for defendant’s other felony convictions. Under the cirсumstances presented, defendant should have been sentenced as a second felony offender to an indeterminate period of incarceration on each of the counts, which sentеnce should have had a maximum term of no less than three but no more than four years, with a minimum term set at one-half the maximum (see, Penal Law § 70.06 [3] [e]; [4] [b]).
Finally, addressing defendant’s excessive sentence argument, we are unable to conceive of any reason to reduce the sentence
Mercure, J. P., Crew III, Rose and Lahtinen, JJ., concur. Ordered that the judgment is modified, on the law, by reversing so much thereof as convicted defendant of counts 2, 6 and 11 of the indictment; said counts dismissed and matter remitted to the County Court of Albany County for resentencing on counts 4, 8, 9 and 10 of the indictment; and, as sо modified, affirmed.
Notes
. Such constitutional provision states, in pertinent part, that “[t]he county court shall have jurisdiction over the following classes of actions and proceedings [,] which shall be originated in such county court in the manner provided by law, [including] * * * all crimes and other violations of law” (NY Const, art VI, § 11 [a]).
. Forcible compulsion is defined, in relevant part, as “to compel by either * * use of "physical force; оr * * * a threat, express or implied, which places a person in fear of immediate death or physical injury to * * * herself’ (Penal Law § 130.00 [8] [a], [b]).
. “A person is guilty of sodomy in the third degree when * * * [bjeing twenty-one years old оr more, he engages in deviate sexual intercourse with a person less than seventeen years old” (Penal Law § 130.40 [2]). Deviate (n. cont’d)
. An individual is guilty of rape in the third degree when “[b]eing twenty-one years old or more, he or she engages in sexual intercourse with another person to whom the actor is not married less than seventeen years old” (Penal Law § 130.25 [2]).