Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65[3] ). As the People correctly concede, defendant's “purported waiver of the right to appeal is not valid inasmuch as [Supreme] Court failed to obtain a knowing and voluntary waiver of that right at the time of the plea, and instead obtained the purported waiver at sentencing” (People v. Pieper, 104 A.D.3d 1225, 1225, 960 N.Y.S.2d 677 ). We nonetheless reject defendant's contention that the court erred in refusing to suppress his statements to the police. “[T]he record of the suppression hearing supports the court's determination that the statements were not coerced, i.e., defendant received no promises in exchange for making the statements nor was he threatened in any way, and the court's determination is entitled to great deference” (
People v. Peay, 77 A.D.3d 1309, 1310, 908 N.Y.S.2d 316, lv. denied 15 N.Y.3d 955, 917 N.Y.S.2d 114, 942 N.E.2d 325 ; see People v. Brown, 111 A.D.3d 1385, 1386, 975 N.Y.S.2d 293, lv. denied 22 N.Y.3d 1155, 984 N.Y.S.2d 638, 7 N.E.3d 1126 ; see generally
People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ). The conflicting testimony of defendant and the investigator who testified at the hearing “merely raised an issue of credibility that the court was entitled to resolve in favor of the People” (People v. Coleman, 306 A.D.2d 941, 941, 760 N.Y.S.2d 797, lv. denied 1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364 ; see People v. Cass, 43 A.D.3d 1272, 1273, 843 N.Y.S.2d 893, lv. denied 9 N.Y.3d 1032, 852 N.Y.S.2d 17, 881 N.E.2d 1204 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.