| People v Vasquez |
| 2009 NY Slip Op 02684 [61 AD3d 1109] |
| April 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jose Vasquez,Also Known as Tony, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Kavanagh, J.), rendered June 24,2005 in Ulster County, convicting defendant upon his plea of guilty of the crimes of murder inthe second degree, burglary in the first degree (two counts) and robbery in the first degree.
Defendant and two other individuals planned to break into the victim's apartment while hewas away to steal drugs and money. Defendant and one of the individuals entered the victim'sapartment during the overnight hours of October 17-18, 2004. When the victim unexpectedlyreturned, they assaulted and killed him. Defendant, who lived in the same building as the victim,was one of many potential witnesses interviewed by police on October 18, 2004. Furtherinvestigation by police revealed possible inaccuracies in defendant's statement, which resulted ina follow-up interview. During the course of that interview, defendant acknowledged providingincorrect information in his earlier statement and, at that time, he was given Mirandawarnings. Thereafter, police learned that the other individual who entered the apartment hadconfessed and implicated defendant. Confronted with this evidence, defendant, after again beingMirandized, gave police an inculpatory statement.
Defendant was indicted on two counts of murder in the second degree, two counts ofburglary in the first degree, two counts of robbery in the first degree and one count of hindering[*2]prosecution in the first degree. His motion to suppress hisstatement to police was denied following a Huntley hearing. Thereafter, he pleadedguilty to one count of murder in the second degree, two counts of burglary in the first degree andone count of robbery in the first degree. He was sentenced to prison terms of 20 years to life onthe murder count and 20 years on the remaining counts, all to run concurrently. Defendantappeals.
Defendant initially argues that his statement to police should have been suppressed sinceSpanish is his primary language, he did not fully understand the Miranda warnings thatwere given in English and, thus, he did not knowingly and intelligently waive his right to remainsilent. An effective waiver must be preceded by Miranda warnings that the suspectunderstands (see People v Sirno, 76 NY2d 967, 968 [1990]; People v Singh, 285AD2d 563, 564 [2001], lv denied 97 NY2d 688 [2001]). The investigator involved in thequestioning of defendant testified at the suppression hearing that defendant stated he understoodhis rights after being advised of them. The Miranda warnings were administered asecond time before defendant gave his statement and, at that time, defendant specifically saidthat he could read and write English. The investigator who administered the Mirandawarnings the second time asked defendant to read out loud the first warning from the sheet,which he did successfully. The investigator then read all the warnings to defendant, asked him ifhe understood, and defendant responded that he did. Defendant did not request an interpreter andthe investigator stated that defendant conversed well in English. Supreme Court's determinationthat defendant understood his rights and freely waived them is amply supported by the record,and we discern no reason to disturb that determination (see People v Gerena, 49 AD3d 1204, 1205 [2008], lvdenied 10 NY3d 958 [2008]; People v Mora, 36 AD3d 1142, 1143-1144 [2007], lvdenied 8 NY3d 988 [2007]).
Defendant's contention that his purported inability to adequately understand English resultedin his plea not being made knowingly, voluntarily and intelligently was not properly preservedby a motion to withdraw the plea or vacate the judgment of conviction (see People v Nunez, 56 AD3d897, 898 [2008], lv denied 11 NY3d 928 [2009]; People v Griffin, 47 AD3d 1164 [2008]). In any event, nothing inthe colloquy indicates that defendant did not act knowingly and voluntarily, and, in fact,Supreme Court had a Spanish interpreter assist defendant during the plea allocution.
The final argument advanced by defendant is that Supreme Court erred in denying hismotion challenging the composition of the grand jury upon the ground that it did not represent afair cross section of the community. Defendant bore the burden of showing "that a substantialand identifiable segment of the community was not included in the jury pool based on asystematic exclusion of that group" (People v Williams, 256 AD2d 661, 663 [1998],lv denied 93 NY2d 981 [1999]; see People v Guzman, 60 NY2d 403, 410-411[1983], cert denied 466 US 951 [1984]). His conclusory assertion that Hispanics weresystematically excluded from the jury pool was premised upon "information and belief" and wasnot supported by any proof. Accordingly, the motion was properly denied (see People v Studstill, 27 AD3d833, 835 [2006], lv denied 6 NY3d 898 [2006]; People v Blanchard, 279AD2d 808, 811 [2001], lv denied 96 NY2d 826 [2001]).
Peters, J.P., Rose, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.