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Appeal from a judgment of the County Court of Broome County (Smyk, J.), rendered July 22, 1980, convicting defendant upon his plea of guilty of the crime of rape in the first degree. Defendants conviction was previously affirmed by this court (86 A.D.2d 784). On June 4, 1982, we granted leave to reargue our April 13, 1982 denial of his application to reopen the appeal for the purpose of raising issues related to a suppression hearing in which suppression of his statements and admissions to police was denied. The sole issue before us on this appeal is whether the suppression court erred in holding that defendants confession was admissible. Defendant voluntarily accompanied police to the Ontario County Sheriffs office where, after being given Miranda warnings, he was questioned concerning his involvement in a forcible rape one day earlier. Defendant contends that his confession should have been suppressed because it was obtained by promise of an "easier" sentence and that a shorter separation from his girlfriend would result, and also that questioning continued after he said he wished to remain silent. The judgment should be affirmed. Defendants arguments are not supported by the record. He correctly contends that a statement "obtained by any direct or implied promises, however slight" (Bram v United States, 168 U.S. 532, 542-543) is inadmissible. Nor do we disagree with the holding in People v Bay (76 A.D.2d 592, app dsmd 54 N.Y.2d 808), relied upon by defendant. However, the factual situation here does not begin to approach that found in Bay, and is readily distinguishable. "Credibility is determined by the trier of the facts who has the advantage of observing the witnesses and necessarily is in a superior position with respect to that aspect than an appellate court which reviews but the printed record" (People v Stroman, 83 A.D.2d 370, 372, quoting [90 A.D.2d 917 Page 918]

Professional & Technical
November 24
LawApp Publishers
Innodata Book Distribution Services Inc

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