| People v Neal |
| 2015 NY Slip Op 08008 [133 AD3d 920] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJames Neal, Also Known as Big, Appellant. |
G. Scott Walling, Schenectady, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Jason P. Weinstein, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered December 18, 2013, convicting defendant upon his plea ofguilty of the crime of robbery in the second degree.
In April 2013, defendant and several other individuals forcibly entered a motel roomand stole drugs, electronics, jewelry and money from the women and children who werestaying there. A witness who was at the motel at the time of the robbery was shown aphoto array by an investigator from the State Police in May 2013 but was unable toidentify defendant. Approximately one month later, the witness was shown a secondphoto array—this one containing an older photo of defendant that more closelycomported with the description of the alleged suspect[FN1] —and the witness identifieddefendant as [*2]someone she had observed at therobbery. Defendant was thereafter arrested in New York City and was driven upstate byState Police for arraignment. While en route, defendant agreed to provide a writtenstatement to the police and was given Miranda warnings. A grand jury thereafterhanded down a 25-count indictment charging defendant and five other individuals withvarious crimes associated with the April 2013 robbery.
In his omnibus motion, defendant sought preclusion of the witness identification andsuppression of his written statement made to the State Police. After a combinedWade/Huntley hearing, County Court denied defendant's motion determining thatthe photo lineup was not unduly suggestive and that defendant's statement to the policewas voluntary. Defendant thereafter pleaded guilty to robbery in the second degree in fullsatisfaction of all the charges against him and was sentenced, as a second felonyoffender, to a prison term of seven years, to be followed by five years of postreleasesupervision. Defendant now appeals and we affirm.
Initially, defendant's contention that the photographic identification procedure wasunduly suggestive is unpreserved for our review since he failed to raise at thesuppression hearing the specific grounds upon which he now challenges the procedure(see CPL 470.05 [2]; People v Acevedo, 84 AD3d 1390, 1390 [2011], lvdenied 17 NY3d 951 [2011]; see also United States v Wade, 388 US 218[1967]). By not filing an appropriate postallocution motion to withdraw his plea,defendant likewise failed to preserve his challenge to the factual sufficiency of his plea(see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Martin, 125 AD3d1054, 1054 [2015], lv denied 26 NY3d 932 [2015]).[FN2]
Defendant next argues that the written statement that he provided to the State Policeafter his arrest should have been suppressed on the ground that it was involuntarybecause, while being transported from New York City to the State Police barracks in theTown of Greenwich, Washington County—nearly four hours away—hewas forced to ride in the back of the police car and was handcuffed, and he provided thestatement only after the police promised to help him obtain reasonable bail. A confessionor written statement admitting guilt is inadmissible as involuntarily made when it isobtained by, among other things, the use of "undue pressure" or "by means of anypromise or statement of fact, which promise or statement creates a substantial risk thatthe defendant might falsely incriminate himself" (CPL 60.45 [2] [a], [b] [i]; seeCPL 60.45 [1]; People vThomas, 22 NY3d 629, 646 [2014]). In this regard, we are guided by theprinciple that the voluntariness of an inculpatory statement is determined by looking atthe totality of the circumstances under which it was obtained (see People vAnderson, 42 NY2d 35, 38 [1977]; People v Pouliot, 64 AD3d 1043, 1044 [2009], lvdenied 13 NY3d 838 [2009]; see also People v Mateo, 2 NY3d 383, 413-414[2004], cert denied 542 US 946 [2004]), and we give deference to the credibilitydeterminations that are supported by the record as a whole (see People v Flemming, 101AD3d 1483, 1484 [2012], lv denied 21 NY3d 942 [2013]; People v Button, 56 AD3d1043, 1044 [2008], lv dismissed 12 NY3d 781 [2009]).
Here, State Police Investigator David Ferro testified at the Huntley hearingthat when defendant arrived at a police station near New York City, he introducedhimself to defendant, [*3]changed defendant's handcuffs,read defendant his Miranda rights from a preprinted card and asked defendantwhether he wished to speak to the police. According to Ferro, defendant acknowledgedthat he understood his Miranda rights and that he wished to speak to the police.Defendant was then placed in Ferro's patrol vehicle in the right rear seat, next to Ferro,while another officer drove. Ferro testified that he had informed defendant that his arrestwas about the robbery, to which defendant responded by nodding his head, and askeddefendant "if he wanted to give his side of the story." Defendant agreed to provide astatement to the police but indicated that he would like to "be out on bail." Ferroinformed defendant that he "would call the [District Attorney's] office to let them know[that] if he remained cooperative, [he would] have no problem making a call and askingfor a bail recommendation." Upon arriving in the interview room, Ferro had defendantread out loud and initial Miranda warnings printed on top of the form used torecord defendant's written statement, which was transcribed by Ferro. According toFerro, defendant did not ask to speak to an attorney. While defendant made his statement,Ferro asked defendant questions and, upon finishing his statement, Ferro read thestatement to defendant, who reviewed the statement, initialed each page and signed thestatement.
In view of the foregoing circumstances, we find that County Court correctlydetermined that the People established beyond a reasonable doubt that defendant'swritten statement was given voluntarily and that defendant knowingly, intelligently andvoluntarily waived his Miranda rights. Indeed, there is no evidence in the recordto suggest that the police acted in "an unduly coercive or threatening manner" or thattheir conduct undermined defendant's choice regarding "whether or not to provide astatement" (People v Pouliot, 64 AD3d at 1045-1046 [internal quotations marksand citations omitted]; see CPL 60.45 [2] [a]). Furthermore, defendant's pastexperience with the criminal justice system also supports the determination that heknowingly and voluntarily provided the statement to the police (see People v McLean, 59AD3d 861, 863 [2009], affd 15 NY3d 117 [2010]; People v Ward,241 AD2d 767, 769 [1997], lv denied 91 NY2d 837 [1997]). Finally, while Ferroinformed defendant that he would call the District Attorney's office and make a bailrecommendation if defendant remained cooperative, Ferro neither promised defendantthat he would be released on bail, nor gave any assurance to defendant that he would notbe prosecuted or that he would receive lenient treatment; therefore, there was not asubstantial risk that defendant would falsely incriminate himself (see CPL 60.45[2] [b] [i]; People v Williamson, 245 AD2d 966, 968 [1997], lv denied 91NY2d 946 [1998]).
Finally, we perceive no circumstances in this case that would warrant a reduction inthe sentence as harsh or excessive. After taking into account defendant's prior criminalhistory and the violent nature of the crime, County Court was within its discretion inimposing a sentence only two years beyond the statutorily permitted minimum sentence(see People v Brabham, 126AD3d 1040, 1044 [2015], lv denied 25 NY3d 1160 [2015]).
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The first photo arraycontained a more recent picture of defendant taken just prior to his release from prisonand depicted him as noticeably thinner and with short hair. The second photo arraydepicted an older photo of defendant in which he appeared much heavier and with longerhair.
Footnote 2:Defendant's contentionspertaining to the factual sufficiency of his plea were raised for the first time in his replybrief and, therefore, are not properly before us in any event (see Matter of Claydon, 103AD3d 1051, 1054 [2013]).