| People v Barski |
| 2009 NY Slip Op 06940 [66 AD3d 1381] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelBarski, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, J.), rendered May30, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [b]). Weagree with defendant that his waiver of the right to appeal is invalid inasmuch as the record failsto "establish that [he] understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Cain, 29 AD3d 1157[2006]; People v Popson, 28 AD3d870 [2006]). The contention of defendant that he was denied his right to effective assistanceof counsel therefore survives the invalid waiver of the right to appeal (see People v Campbell, 62 AD3d1265 [2009]), and it survives the plea to the extent that he contends that the plea wasinfected by the alleged ineffective assistance of counsel (see People v Gimenez, 59 AD3d 1088 [2009], lv denied 12NY3d 816 [2009]; cf. People vOliveri, 49 AD3d 1208, 1209 [2008]). We nevertheless conclude, however, thatdefendant's contention lacks merit (seePeople v Gross, 50 AD3d 1577 [2008]; see generally People v Ford, 86 NY2d397, 404 [1995]).
Although the further contention of defendant that County Court erred in refusing to suppresshis statement to the police on the ground that the statement was made in violation of his right tocounsel survives the invalid waiver of the right to appeal (see People v Ortiz, 46 AD3d 1409, 1409-1410 [2007], lvdenied 10 NY3d 769 [2008]), we conclude that it is without merit. " 'The suppression court'scredibility determinations and choice between conflicting inferences to be drawn from the proofare granted deference and will not be disturbed unless unsupported by the record' " (People v Twillie, 28 AD3d 1236,1237 [2006], lv denied 7 NY3d 795 [2006]). The record of the suppression hearingestablishes that, after defendant was informed of his Miranda rights at the police stationand that he had been implicated in a robbery, defendant asked the investigator, "should I get alawyer?" The record supports the court's determination that defendant's question "was not anunequivocal assertion of [defendant's] right to counsel when viewed in context of the totality ofcircumstances, particularly with respect to events following the comment itself" (People vPowell, 304 AD2d 410, 411 [2003], lv denied 1 NY3d 578 [2003]; see People vGlover, 87 NY2d 838, 839 [1995]). Indeed, following [*2]defendant's question, the investigator informed defendant that hecould not answer that question, that defendant must make that decision himself, and that he couldnot provide advice to defendant with respect to that question. Although defendant was silent forseveral minutes, he then admitted that he had committed the crime. We conclude that defendantthereby "clearly and unambiguously" expressed his desire to continue the interview without theassistance of counsel and thus did not unequivocally invoke his right to counsel before makinghis statement to the police such that his right to counsel attached (Glover, 87 NY2d at839; see People v Kuklinski, 24AD3d 1036 [2005], lv denied 7 NY3d 758, 814 [2006]; Powell, 304 AD2dat 410-411).
Defendant failed to preserve for our review his further contention that the plea wasinvoluntarily entered inasmuch as he failed to move to withdraw the plea or to vacate thejudgment of conviction (see People vKuras, 49 AD3d 1196 [2008], lv denied 10 NY3d 866 [2008]), and this casedoes not fall within the narrow exception to the preservation doctrine (see People vLopez, 71 NY2d 662, 666 [1988]). Finally, the further contention of defendant that the courtabused its discretion in denying his request for youthful offender status is without merit.Defendant was convicted of an armed felony (see CPL 1.20 [41] [b]), and there were no"mitigating circumstances that [bore] directly upon the manner in which the crime wascommitted" (CPL 720.10 [3] [i]; see CPL 720.10 [2] [a] [ii]; People v Crawford, 55 AD3d1335, 1336 [2008], lv denied 11 NY3d 896 [2008]; People v Lockwood,283 AD2d 987 [2001]). Present—Smith, J.P., Centra, Fahey, Carni and Pine, JJ.