D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.
Barry L. Porsch, District Attorney, Waterloo, for Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of murder in the second degree
(Penal Law 125.25 [2 ] ). Defendant contends that his statements to his wife should have been ruled inadmissible pursuant
to the statutory privilege for marital communications (see CPLR 4502[b] ; see also CPL 60.10 ). We conclude that defendant's challenge to County Court's pretrial evidentiary ruling does not survive but rather was forfeited by his plea of guilty (see People v. Alvarado, 103 A.D.3d 1101, 1101, 958 N.Y.S.2d 554, lv. denied 21 N.Y.3d 910, 966 N.Y.S.2d 362, 988 N.E.2d 891 ; People v. Davis, 99 A.D.3d 1228, 1229, 951 N.Y.S.2d 808, lv. denied 20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328 ; see also People v. Hutter, 143 A.D.3d 574, 575, 41 N.Y.S.3d 211, lv. denied 28 N.Y.3d 1125, ––– N.Y.S.3d ––––, –––N.E.3d ––– –; see generally People v. Campbell, 73 N.Y.2d 481, 486, 541 N.Y.S.2d 756, 539 N.E.2d 584 ).
We reject defendant's further contentions that his statements to the police should have been suppressed on the grounds that he did not validly waive his Miranda rights at the outset of the interrogation, that he requested counsel during the interview, and that his statements were involuntarily made in violation of his due process rights, on account of the 9 ½–hour length and other circumstances of the interrogation. The suppression hearing testimony supports the court's determination that, until near the end of the interrogation session, the situation was such that "a reasonable man, innocent of any crime," who was "in the defendant's position," would have believed that he was free to leave the police station (People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 ; see People v. Vargas, 109 A.D.3d 1143, 1143, 971 N.Y.S.2d 624, lv. denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 ). In any event, the record supports the court's determination that defendant was read his Miranda warnings at the outset of the interrogation and waived his rights, agreeing to speak with investigators in the absence of counsel (see People v. Pierce, 142 A.D.3d 1341, 1341–1342, 38 N.Y.S.3d 460 ; People v. Carbonaro, 134 A.D.3d 1543, 1547–1548, 23 N.Y.S.3d 525, lv. denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216, reconsideration denied 27 N.Y.3d 1149, 39 N.Y.S.3d 384, 62 N.E.3d 124 ). We further conclude that the record supports the court's determination that defendant did not, at any time during the interrogation, unequivocally request the assistance of counsel (see People v. Schluter, 136 A.D.3d 1363, 1364, 24 N.Y.S.3d 478, lv. denied 27 N.Y.3d 1138, 39 N.Y.S.3d 121, 61 N.E.3d 520 ; People v. Twillie, 28 A.D.3d 1236, 1237, 813 N.Y.S.2d 626, lv. denied 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1290 ; People v. Ashraf, 186 A.D.2d 1057, 1057–1058, 589 N.Y.S.2d 131, lv. denied 80 N.Y.2d 1025, 592 N.Y.S.2d 674, 607 N.E.2d 821 ).
Based on the record of the suppression hearing, which includes a videotape of the interrogation, we conclude that defendant's statements were not elicited by the police in violation of defendant's due process rights (see generally Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 ; People v. Mateo, 2 N.Y.3d 383, 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 ). "It is axiomatic that the length of the interrogation period ‘does not, by itself, render the statement[s] involuntary’ " (
People v. Clark, 139 A.D.3d 1368, 1369, 31 N.Y.S.3d 357, lv. denied 28 N.Y.3d 928, 40 N.Y.S.3d 356, 63 N.E.3d 76 ; see People v. Weeks, 15 A.D.3d 845, 847, 789 N.Y.S.2d 373, lv. denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982 ). In any event, taking into account that defendant was not in custody
for nearly all of the interrogation, we conclude that the length of the interrogation in this case was not such that it deprived defendant of due process (see Clark, 139 A.D.3d at 1369, 31 N.Y.S.3d 357 ; People v. Gega, 74 A.D.3d 1229, 1231, 904 N.Y.S.2d 716, lv. denied 15 N.Y.3d 851, 909 N.Y.S.2d 29, 935 N.E.2d 821, reconsideration denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 ; see also People v. Guilford, 21 N.Y.3d 205, 212–215, 969 N.Y.S.2d 430, 991 N.E.2d 204 ; see generally People v. Anderson, 42 N.Y.2d 35, 39, 396 N.Y.S.2d 625, 364 N.E.2d 1318 ). Nothing in the record before us supports defendant's contention that the police employed physical or psychological tactics that were "so fundamentally unfair as to deny [him] due process" and "induce a false confession" (People v. Bradberry, 131 A.D.3d 800, 802, 16 N.Y.S.3d 97 [internal quotation marks omitted]; see People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188 ). Based on the totality of the circumstances, we conclude that defendant's will was not overborne and that his statements to the police were voluntarily made (see Clark, 139 A.D.3d at 1369, 31 N.Y.S.3d 357 ; People v. Sylvester, 15 A.D.3d 934, 935, 788 N.Y.S.2d 786, lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684 ; see generally Mateo, 2 N.Y.3d at 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ).
Defendant's contention that the court erred in accepting his guilty plea is unpreserved for our review, inasmuch as defendant did not move to withdraw the plea or vacate the judgment of conviction (see CPL 220.60[3] ; see also CPL 440.10 ), and nothing on the face of the record calls into question the voluntariness of the plea or casts significant doubt upon defendant's guilt (see People v. Mobley, 118 A.D.3d 1336, 1337, 988 N.Y.S.2d 323, lv. denied 24 N.Y.3d 1121, 3 N.Y.S.3d 763, 27 N.E.3d 477 ; People v. Robinson, 112 A.D.3d 1349, 1349, 977 N.Y.S.2d 529, lv. denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 ). In any event, there is no merit to the contention. Defendant was not entitled to assurances at the time of the plea that California would not prosecute him for an unrelated homicide, and defendant's plea of guilty was not induced by the contemporaneous expressions of irresolution or uncertainty whether California might do so. Further, the court did not fail to discharge any duty that it might have been under to inquire into defendant's mental capacity to plead guilty (see generally People v. Taylor, 13 A.D.3d 1168, 1169–1170, 787 N.Y.S.2d 539, lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684 ). Nothing on the face of the record demonstrates that defendant lacked a rational understanding of the nature and consequences of his plea (see People v. Young, 66 A.D.3d 1445, 1446, 885 N.Y.S.2d 860, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 ; People v. Lear, 19 A.D.3d 1002, 1002, 796 N.Y.S.2d 293, lv. denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159 ).
To the extent that defendant's claims of ineffective assistance
of counsel survive his guilty plea (see generally People v. VanVleet, 140 A.D.3d 1633, 1633, 34 N.Y.S.3d 274, lv. denied 28 N.Y.3d 938, 40 N.Y.S.3d 365, 63 N.E.3d 85 ; People v. Lucieer, 107 A.D.3d 1611, 1612, 967 N.Y.S.2d 575 ), we conclude that those claims lack merit. Defendant received "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
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