Twelve-year-old Jennifer Schweiger, who had Down syndrome, walked away from her home on Staten Island on July 9, 1987, and did not come back. Neighbors and police combed the vacant lots and woods of the island for her. Her body was found in a shallow grave on the grounds of the old Willowbrook State School, near a campsite used by Andre Rand, a drifter who had once worked there. Rand was charged with her kidnapping and her murder. The jury could not agree on the murder, and on November 15, 1988, he was convicted of kidnapping in the first degree.
These are the two short opinions of the Appellate Division, Second Department, on his appeals, and neither one names a victim. The first, decided November 13, 1990, upholds the 1988 conviction and turns on a single day: August 4, 1987, when Rand, who had been cooperating with the police for almost a month, asked two detectives to drive with him around Staten Island and New Jersey while he retraced his movements on the day Jennifer disappeared. He was arrested at the end of it. The court held that none of that questioning was custodial, so the statements he made could be used, and that his sentence was not excessive.
The second, decided January 20, 2009, concerns a second kidnapping. Holly Ann Hughes, seven, disappeared in Port Richmond in July 1981 after she went out alone to buy a bar of soap; she has never been found. Rand was charged in 2001 and convicted of kidnapping her in the first degree on December 8, 2004, and the court found the evidence sufficient to prove that he had held her in a place where she was not likely to be found. He was never convicted of killing either girl.
Neither opinion says what Rand was accused of doing to either girl beyond the elements of kidnapping, and neither mentions the murder charge on which his first jury deadlocked. The names, ages, dates and circumstances of Jennifer Schweiger’s and Holly Ann Hughes’s disappearances in the opening come from the public case summaries kept by the Charley Project, not from these courts. Rand has been publicly suspected in other disappearances on Staten Island; he has not been convicted in any of them, and the opinions do not mention them.
The 1990 opinion refers to a written decision of the trial court on the suppression hearing, reported at 136 Misc 2d 1034, which gives the fuller account of the August 1987 questioning and is not reproduced here. The 2009 opinion lists Rand under his birth name as well, Frank Rushan, and declines to reach two of his arguments because his lawyers did not raise them at trial. Both are public records of the New York courts and are printed in full.
These two opinions together run to fewer than six thousand characters, and the Caselaw Access Project text is clean; we closed only words the printer had split across lines, and nothing has been spell-checked. The brackets inside the 2009 opinion are the court reporter’s, not ours, and the citation “[872 NYS2d 155]” under its caption points to the same decision in the New York Supplement.
The People of the State of New York, Respondent, v Andre Rand, Appellant.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Felig, J.), rendered November 15, 1988, convicting him of kidnapping in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements made by him to the police.
Ordered that the judgment is affirmed.
On August 4, 1987, the defendant was questioned by two detectives for several hours at various locations on Staten Island and New Jersey. At the conclusion of this questioning, the defendant was arrested. The questioning, none of which took place at a police precinct, had been initiated by the defendant, who sought to establish an alibi by retracing what he claimed were his movements on the day of the victim’s disappearance. The defendant had been cooperating with the police investigation for almost a month, and had previously been questioned at the precinct on at least three occasions after which he had been permitted to leave the precinct. Under such circumstances, a reasonable person in the defendant’s position, innocent of any crime, would have assumed that he was free to leave the company of the detectives on the day in question. Therefore, any statements that the defendant made were not the product of a custodial interrogation and were properly ruled admissible by the hearing court (see, People v Yukl, 25 NY2d 585, cert denied 400 US 851; People v Day, 150 AD2d 595; People v Arcese, 148 AD2d 460; see also, People v Hicks, 68 NY2d 234, 240).
The defendant did not raise, as part of his motion for a trial order of dismissal, the question of whether there was legally sufficient evidence to support a finding that he secreted or held the victim in a place where she could not be found (see, Penal Law § 135.00 [2]). Accordingly, this argument is not preserved for appellate review (see, CPL 470.05 [2]; People v Stahl, 53 NY2d 1048, 1050; People v Udzinski, 146 AD2d 245, 249). In any event, viewing the evidence adduced at trial in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt. The record reveals that the defendant restrained the victim with the intent of preventing her liberation by holding her in a wooded area on the grounds of the Staten Island Developmental Center. Additionally, the evidence was legally sufficient to establish that this area constituted a place where the victim was not likely to be found. Accordingly, the defendant’s argument in this regard is without merit (see, People v Salimi, 159 AD2d 658; People v Valero, 134 AD2d 635; People v Rios, 88 AD2d 1056, affd 60 NY2d 764). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).
Under the circumstances of this case, we conclude that the sentence was not excessive (see, People v Suitte, 90 AD2d 80; see also, People v Sanchez, 131 AD2d 606, 609; People v Roman, 84 AD2d 851; People v Notey, 72 AD2d 279, 282).
We have considered the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Lawrence, Eiber and Ritter, JJ., concur. [See, 136 Misc 2d 1034.]
The People of the State of New York, Respondent, v Andre Rand, Also Known as Frank Rushan, Appellant.
[872 NYS2d 155]
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered December 8, 2004, convicting him of kidnapping in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant claims that the evidence was legally insufficient to prove, beyond a reasonable doubt, that he abducted the victim by either secreting or holding her in a place where she was not likely to be found or by using or threatening to use deadly force (see Penal Law § 135.00 [2]). The defendant’s legal insufficiency claim is not preserved for appellate review to the extent it is premised upon whether there was legally sufficient evidence to prove, beyond a reasonable doubt, that he abducted the victim by using or threatening to use deadly force (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]; People v Payne, 3 NY3d 266, 280 [2004]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see People v Thibodeau, 267 AD2d 952 [1999]; People v Salimi, 159 AD2d 658 [1990]).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant was afforded meaningful representation (see People v Henry, 95 NY2d 563 [2000]; People v Hobot, 84 NY2d 1021 [1995]; People v Baldi, 54 NY2d 137 [1981]; People v Acevedo, 44 AD3d 168, 173 [2007]; People v Dolan, 2 AD3d 745 [2003]; People v Groonell, 256 AD2d 356, 357 [1998]).
The defendant’s remaining contentions raised in points II and III of his brief are not preserved for appellate review. Rivera, J.P, Santucci, Garni and Dickerson, JJ., concur.