| People v Culver |
| 2010 NY Slip Op 00021 [69 AD3d 976] |
| January 7, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherCulver, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered January 22, 2008, convicting defendant upon his plea of guilty of the crimes of sexualabuse in the first degree (29 counts), course of sexual conduct against a child in the seconddegree (12 counts) and endangering the welfare of a child (8 counts).
In February 2007, defendant, a first grade public school teacher in the Town of Clifton Park,Saratoga County, was accused of subjecting one or more children in his class to sexual contact.During an interview with State Police investigators, defendant admitted to sexually abusing sixboys in his class—several times over the course of recent weeks or months—bytouching their genitals, two underneath their clothing and four over their clothing. He wasarrested and charged with 29 counts of sexual abuse in the first degree, 12 counts of course ofsexual conduct against a child in the second degree and 8 counts of endangering the welfare of achild for conduct alleged to have occurred between 2002 and 2007. After a Huntleyhearing, County Court denied defendant's motion to suppress his statements, finding that hisadmissions were voluntary and made after a valid waiver of Miranda rights. Defendantthereafter pleaded guilty to the entire indictment and the court imposed the agreed-uponaggregate sentence of 12 years in prison. Defendant now appeals.
Initially, defendant contends that his statements to police were inadmissible as the [*2]product of a custodial interrogation, in the absence of a validwaiver of Miranda rights. The People bore the burden of proving the voluntariness ofdefendant's statements beyond a reasonable doubt, including that any custodial interrogation waspreceded by the administration and defendant's knowing waiver of his Miranda rights(see People v Baggett, 57 AD3d1093, 1094 [2008]). The investigators, credited by County Court, testified that they went todefendant's home at 7:00 p.m., informed him of the investigation, of which he was aware, and heagreed to accompany them to the State Police barracks for an interview. Defendant was driven inthe rear of an unmarked vehicle approximately 10 minutes to the barracks, during which smalltalk was exchanged. At the barracks, defendant was taken into an interview room, left alonebriefly and then read Miranda warnings; he indicated that he understood and agreed tospeak with investigators. The interview lasted about one hour, during which defendant was askedabout the allegations and, upon review of a list of students in his class, made extensiveadmissions. Defendant was never handcuffed, threatened or promised anything. There is noevidence that the interview was confrontational or that any improper coercive tactics wereemployed, and all questioning ceased when defendant's wife arrived and was allowed to speakalone with him. By contrast, defendant testified that he was questioned about the allegationsduring the trip to the barracks and that, although he received Miranda warnings at thebarracks, he never waived his rights.
County Court concluded that defendant voluntarily went with investigators for questioningand that he received, indicated he understood, and waived his Miranda rights prior tobeing questioned and making admissions (see People v Pouliot, 64 AD3d 1043, 1045 [2009], lvdenied 13 NY3d 838 [2009]). Giving deference to the court's factual and credibilitydeterminations, its finding that defendant's statements were voluntary is fully supported by therecord and, thus, regardless of whether defendant was in custody during the questioning, whichis doubtful, his statements that followed his knowing and voluntary waiver of hisMiranda rights were admissible (see People v Maddox, 31 AD3d 970, 973-974 [2006], lvdenied 7 NY3d 868 [2006]; Peoplev Seymour, 14 AD3d 799, 801 [2005], lv denied 4 NY3d 856 [2005]; People v Serrano, 14 AD3d 874,875 [2005], lv denied 4 NY3d 803 [2005]).
Defendant also argues that County Court should have credited his testimony that herequested to speak to an attorney several times during questioning, thereby invoking his right tocounsel and requiring cessation of all questioning, but his requests were ignored. Underwell-established law, a request for counsel does operate to indelibly attach the stateconstitutional right to counsel for an uncharged person in custody, requiring an end to furtherquestioning in the absence of an attorney (see People v West, 81 NY2d 370, 373-374[1993]; People v Cunningham, 49 NY2d 203, 205 [1980]). However, the policeinvestigators unequivocally testified that defendant never inquired about or requested an attorneyat any point during the questioning, and they fully advised him of his Miranda rights,which he indicated he understood, prior to any questioning. Defendant's wife testified, undersubpoena, that when defendant left their home with investigators, he told her that he did not wantan attorney. His contrary testimony required County Court to again make a credibilitydetermination, based upon its firsthand observations of the testifying witnesses; accordingdeference to the court's express determination to give "little credence to the defendant's versionof events," which is supported by the record, the court's finding that defendant had not invokedhis right to counsel before or during questioning will not be disturbed (see People v Mayo, 19 AD3d 710,711 [2005]; see also People vBermudez, 31 AD3d 968, 968 [2006], lv denied 8 NY3d 944 [2007]).
Notably, also, the Huntley testimony established that all questioning of defendantceased [*3]when his wife presented at the barracks and asked tospeak with defendant, indicating to police that she had "retained counsel" for defendant. In fact,no evidence was presented that defendant's wife had retained a particular attorney and noattorney appeared at or called the barracks; while defendant's wife testified that she hadtelephoned an attorney and gave defendant information at the barracks to contact an attorney,neither she nor defendant ever actually spoke to an attorney about representing defendant. Assuch, at the time of the police interview, no attorney had been retained to represent defendant orhad entered the matter under investigation (see People v Grice, 100 NY2d 318, 321-322[2003]).
Defendant claims, for the first time on appeal, that his original trial attorney ineffectivelyrepresented him because counsel convinced him weeks after his arrest to undergo a psychiatricevaluation to determine his risk of reoffending, advising him that it would be kept confidential,but later provided a copy to the People. Significantly, however, defendant retained substitutetrial counsel prior to filing his omnibus motion. While the People indicated in their oppositionpapers their intent to use the evaluation against defendant should he testify at trial, defendantnever moved in County Court, as he could have, to preclude the evaluation from evidence, anddid not request a ruling on its admissibility or use if defendant were to testify at trial. Thus, anycontention that the evaluation was improperly provided to the People or should have beensuppressed or otherwise excluded was forfeited by his guilty plea and is not preserved for ourreview (see People v Keebler, 15AD3d 724, 726 [2005], lv denied 4 NY3d 854 [2005]; cf. CPL 710.70 [2],[3]; 710.20). Likewise, defendant's failure to move to withdraw his plea or vacate the judgmentrenders his assertions of ineffective assistance unpreserved for our review (see People v Clark, 52 AD3d 951,952 [2008], lv denied 11 NY3d 831 [2008]).
Also, because no motion was made in County Court on this issue, most of the ineffectiveassistance of counsel allegations now raised by defendant are outside of the record on appeal,e.g., no affidavit was submitted to the court from defendant as to what counsel may haveexplained to him with regard to the evaluation and no affidavit from counsel as to his purpose orunderstanding, if any, upon providing the full evaluation to the People. While a CPL 440.10motion is often the appropriate vehicle for developing facts dehors the record (see e.g. People v Buskey, 62 AD3d1164, 1165 [2009]; People vAnthony, 52 AD3d 864, 866 [2008], lv denied 11 NY3d 733 [2008]), "this doesnot apply to facts that should have been placed on the record during trial [proceedings]"(People v Williams, 286 AD2d 620, 620 [2001], lv denied 97 NY2d 659 [2001];see CPL 440.10 [3] [a]; People v Wong, 256 AD2d 724, 725 [1998], lvdenied 93 NY2d 903 [1999]). Thus, defendant's failure to raise these claims at any timebefore entering a guilty plea and being sentenced, despite the assistance of new counsel andample opportunity to do so, would seem to preclude doing so by way of a postjudgmentcollateral challenge (see id.).
Defendant's remaining claims have been evaluated and determined to lack merit.
Cardona, P.J., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.