| People v McLean |
| 2009 NY Slip Op 01367 [59 AD3d 861] |
| February 26, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v SamuelMcLean, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered January 30, 2008, convicting defendant upon his plea of guilty of the crimes of murderin the second degree (two counts), attempted robbery in the first degree (three counts), criminalpossession of a weapon in the second degree (three counts), criminal possession of a weapon inthe third degree (six counts), conspiracy in the fourth degree and criminal mischief in the thirddegree.
In August 2003, defendant, represented by assigned counsel Steven Kouray, pleaded guiltyto one count of robbery in the second degree in full satisfaction of three pending indictments. Aspart of the plea agreement, the People agreed to recommend a reduced sentence if defendantprovided meaningful information regarding an unrelated murder. Accordingly, in October 2003,defendant and Kouray met with detective John Sims of the City of Schenectady PoliceDepartment, during which time defendant provided information concerning the murder. ThePeople ultimately concluded that the information provided by defendant was not meaningful and,for the most part, false. Defendant was then sentenced to 12 years in prison for the robberyconviction.
In December 2006, Sims and detective Michael Brown met with defendant at thecorrectional facility where he was serving his sentence for the robbery conviction. Sims [*2]informed defendant that Antoan Baker had made a statementimplicating him in the murder and extended a plea offer to defendant on behalf of theSchenectady County District Attorney in exchange for his cooperation in the murderinvestigation. After being advised of his Miranda rights, defendant provided anincriminating written statement concerning the murder.
Defendant and Baker were subsequently charged in a 16-count indictment with, among otherthings, two counts of murder in the second degree. At arraignment, the Conflict Defender'sOffice was assigned to represent defendant on these charges. Following a Huntleyhearing, a Judicial Hearing Officer (hereinafter JHO) denied defendant's motion to suppress hiswritten statement as involuntary. Defendant thereafter pleaded guilty to all counts of theindictment and was sentenced, as a second felony offender, to an aggregate prison term of 21years to life, to run consecutively with the sentence he was then serving. Defendant now appeals.
Defendant claims that his written statement should be suppressed because it was obtained bya police promise that rendered it involuntary under statutory standards, in that the promisecreated a substantial risk that he might falsely incriminate himself (see CPL 60.45 [2] [b][i]). Whether such a promise was made is a question of fact (see People v Bridges, 16 AD3d 911, 912 [2005], lv denied4 NY3d 884 [2005]) and the suppression court's factual determination on this issue is " 'entitledto great weight and will not be set aside unless clearly erroneous' " (id., quotingPeople v Gagliardi, 232 AD2d 879, 880 [1996]; see People v Prochilo, 41 NY2d759, 761 [1977]).
At the suppression hearing, the testimony of Sims and Brown concerning the terms of theplea offer that they conveyed to defendant conflicted with defendant's version of the event. Suchconflicting testimony presented a credibility determination for the factfinder to resolve (seePeople v Cleveland, 257 AD2d 689, 691 [1999], lv denied 93 NY2d 871 [1999];People v Engert, 202 AD2d 1023, 1024 [1994], lv denied 83 NY2d 910 [1994]),and we find no basis upon which to disturb the JHO's decision to credit the testimony of Simsand Brown over that of defendant (seePeople v Button, 56 AD3d 1043, 1044 [2008]; People v Bermudez, 31 AD3d 968, 968 [2006], lv denied 8NY3d 944 [2007]). As the record supports the JHO's factual finding that the specific promisealleged by defendant was never made, defendant's contention that his written statement wasinduced by such promise must fail.
Nor do we find that defendant's statement was involuntary under constitutional standards(see CPL 60.45 [2] [b] [ii]; Arizona v Fulminante, 499 US 279 [1991]). Theoverall period of questioning was not long in duration, no threats were uttered and defendant wasnot subjected to physical abuse or mistreatment. As previously noted, defendant was informed ofhis Miranda rights and waived them, and he specifically testified that the statement hegave was entirely truthful and was made, in part, due to his willingness to assist the police infinding the individuals who took part in the murder. Significantly, defendant had extensiveexperience in the criminal justice system (see People v Ward, 241 AD2d 767, 769[1997], lv denied 91 NY2d 837 [1997]; People v Sobchik, 228 AD2d 800, 802[1996]; People v Miller, 220 AD2d 902, 904 [1995], lv denied 88 NY2d 882[1996]). Examining the totality of the circumstances presented by this record, we find that theconduct of Sims and Brown was not "such as to overbear the defendant's will" and, therefore, hiswritten statement was voluntary (People v Bridges, 16 AD3d at 912; see People vWard, 241 AD2d at 769; People v Richardson, 202 AD2d 958, 958 [1994], lvdenied 83 NY2d 914 [1994]). Accordingly, the suppression motion was properly denied.
Defendant also contends that his written statement must be suppressed because it was [*3]obtained in violation of his right to counsel. Specifically, defendantargues that his right to counsel with respect to the murder investigation indelibly attached when,as part of the 2003 plea agreement in the unrelated robbery matter, Kouray appeared with him toprovide information to police regarding the murder. However, defendant failed to raise thisclaimed deprivation of his constitutional right to counsel at the trial court level. While thisfailure does not necessarily foreclose defendant from raising this issue on appeal (see Peoplev Kinchen, 60 NY2d 772, 773 [1983]; People v Sanders, 56 NY2d 51, 66 [1982];People v Samuels, 49 NY2d 218, 221 [1980]), " 'appellate review is precluded where. . . the record does not contain sufficient facts to permit such review' " (Peoplev Berezansky, 229 AD2d 768, 772 [1996], lv denied 89 NY2d 919 [1996], quotingPeople v Farinaro, 110 AD2d 653, 656 [1985]; see People v Kinchen, 60 NY2dat 773-774; People v Charleston, 54 NY2d 622, 623 [1981]; People v De Mauro,48 NY2d 892, 893 [1979]). Notably, Kouray did not testify at the suppression hearing and, uponour review of the evidence that was presented, we find that the record is bereft of materialevidence sufficient to permit appellate review of this claim (see People v Kinchen, 60NY2d at 773-774; People v Brown, 286 AD2d 960, 961 [2001], lv denied 97NY2d 679 [2001]).
We have considered defendant's additional assertions of error and find them without merit.
Mercure, J.P., Kane, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.