| People v Buckman |
| 2009 NY Slip Op 06962 [66 AD3d 1400] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DanaBuckman, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered February1, 2006. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree.
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,of robbery in the first degree (Penal Law § 160.15 [4]). Although defendant sought tosuppress oral statements that he made to the police, he contends for the first time on appeal thatCounty Court erred in refusing to suppress the statements on the ground that they were theproduct of physical coercion. Defendant thus failed to preserve that contention for our review(see People v Poole, 55 AD3d1354 [2008], lv denied 11 NY3d 929 [2009]; People v Brooks, 26 AD3d 739, 740 [2006], lv denied 6NY3d 846, 7 NY3d 810 [2006]; People v Zeito, 302 AD2d 923 [2003], lv denied99 NY2d 634 [2003]). In any event, defendant's contention is without merit. There was noevidence adduced at the Huntley hearing that defendant's purported injuries rendered thestatements the product of physical coercion and thus involuntary (see generally People v Shepard, 13AD3d 1223, 1224 [2004], lv denied 4 NY3d 803 [2005]; People v Howard,256 AD2d 1170 [1998], lv denied 93 NY2d 874 [1999]). We likewise conclude that thestatements were not the product of physical coercion and thus involuntary based on defendant'salleged heroin withdrawal during the police interview. "Heroin withdrawal will not render anoral statement inadmissible unless the withdrawal 'has risen to the degree of mania' " (Peoplev Dlugos, 237 AD2d 754, 756 [1997], lv denied 89 NY2d 1091 [1997], quotingPeople v Adams, 26 NY2d 129, 137 [1970], cert denied 399 US 931 [1970]), andhere the record is devoid of any evidence of mania.
Contrary to the further contention of defendant, he failed to meet his ultimate burden ofproving that the photo array was unduly suggestive based on the fact that he was the onlyindividual depicted with light-colored eyes (see People v Bell, 19 AD3d 1074 [2005], lv denied 5NY3d 803, 850 [2005]). Indeed, there was no testimony adduced at the Wade hearingthat the eyewitnesses had described defendant as having light-colored eyes (see id.).Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Martoche,Peradotto, Carni and Gorski, JJ.