| People v Newcomb |
| 2007 NY Slip Op 08129 [45 AD3d 890] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RosemarieNewcomb, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Peters, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered May 5, 2006in Albany County, convicting defendant upon her plea of guilty of the crime of attemptedcriminal possession of a forged instrument in the second degree.
As a result of an investigation into money being stolen from her employers, defendant wascharged with grand larceny in the third degree, identity theft in the first degree and criminalpossession of a forged instrument in the second degree. A suppression hearing was ultimatelyheld to determine the admissibility of four statements that defendant made to police over atwo-week period. County Court (Herrick, J.) denied defendant's motion to suppress anddefendant thereafter pleaded guilty before Supreme Court (Lamont, J.) to the reduced charge ofattempted criminal possession of a forged instrument in the second degree. Having beenpreviously convicted of grand larceny in the third degree in 1996, defendant was sentenced as asecond felony offender to a prison term of 1½ to 3 years.
Initially, we agree with defendant's contention that her waiver of the right to appeal was notvalid, as the record reveals that defendant did not understand that her right to appeal was"separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; see People v Edwards, 37AD3d 871, 872 [2007], lv denied 8 [*2]NY3d 945[2007]; People v Cain, 29 AD3d1157, 1157 [2006]).[FN*]Consequently, her contentions that her motion to suppress was improperly denied, her plea wasnot knowing and voluntary and her sentence is harsh and excessive are properly before us (see People v Qasem, 39 AD3d960, 961 [2007];
Defendant next contends that the police used deceptive tactics during the course of theirinvestigation such that her statements, any evidence obtained from the eavesdroppingauthorizations and the search waiver should have been suppressed. "Deceptive police stratagemsin securing a statement 'need not result in involuntariness without some showing that thedeception was so fundamentally unfair as to deny due process or that a promise or threat wasmade that could induce a false confession' " (People v Dishaw, 30 AD3d 689, 690 [2006], lv denied 7NY3d 787 [2006], quoting People v Tarsia, 50 NY2d 1, 11 [1980]; accord People v Serrano, 14 AD3d874, 875 [2005], lv denied 4 NY3d 803 [2005]). The testimony at the suppressionhearing fails to reveal any deception on the part of the police such that defendant was denied dueprocess (see People v Lussier, 298 AD2d 763, 763-764 [2002], lv denied 99NY2d 630 [2003]; People v Short, 208 AD2d 1047 [1994], lv denied 85 NY2d866 [1995]; People v Jackson, 143 AD2d 471, 473 [1988]). The evidence furtherestablishes that defendant was not in custody when she made these statements as she voluntarilywent to the police station, she was not handcuffed nor was she prevented from leaving (see People v Thomas, 21 AD3d643, 644 [2005], lv denied 6 NY3d 759 [2005]; People v Lyons, 4 AD3d 549, 551-552 [2004]; People vFinkle, 192 AD2d 783, 786 [1993], lv denied 82 NY2d 753 [1993]). Even if shewere in custody, she was given Miranda warnings prior to her statements, after which shewaived those rights and spoke with police (see People v Serrano, 14 AD3d at 875; People v Petrie, 3 AD3d 665, 666[2004]; People v Doherty, 305 AD2d 867, 867 [2003], lv denied 100 NY2d 580[2003]). As such, County Court did not err in denying her suppression motion.
With respect to defendant's claim that her plea was not knowing, intelligent and voluntary, adefendant need not be advised of every specific right to which he or she is waiving as a result ofa guilty plea, as long as the defendant sufficiently understands the consequences of the plea andenters it voluntarily (see People v Harris, 61 NY2d 9, 16-17, 18-19 [1983]; People v Diaz, 26 AD3d 644, 645[2006], lv denied 7 NY3d 755 [2006]; People v Sawinski, 294 AD2d 667, 668[2002], lv denied 98 NY2d 701 [2002]). Here, although Supreme Court did notseparately set forth all of the trial rights that defendant would be forfeiting should she pleadguilty, it did explain the elements of the crime to which she was pleading and she was informedthat, by pleading guilty, she waived her right to a speedy trial and her right to a jury trial. Inaddition, defendant acknowledged that she was satisfied with her attorney, who had discussed her"legal rights and constitutional rights and any possible defense that [she] may have to thesecharges," and she was entering her plea voluntarily. In these circumstances, we find thatdefendant's plea was knowing, voluntary and intelligent.
Finally, defendant's challenge that her sentence is harsh and excessive is unavailing as [*3]she received the minimum possible sentence for a second felonyoffender convicted of a class E felony (see Penal Law § 70.06 [3] [e]; [4] [b]; People v Williams, 35 AD3d 971,973 [2006], lv denied 8 NY3d 928 [2007]).
Cardona, P.J., Crew III, Spain and Carpinello, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant's plea occurred onemonth prior to the Court of Appeals' decision in People v Lopez (6 NY3d 248 [2006]), which clarified theimportance of distinguishing the waiver of the right to appeal from other rights a defendantsurrenders upon a plea of guilty.