| People v Balkum |
| 2010 NY Slip Op 02632 [71 AD3d 1594] |
| March 26, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WalterBalkum, Appellant. (Appeal No. 1.) |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered February 17, 2004. The judgment convicted defendant, upon his plea of guilty, ofattempted robbery in the first degree, burglary in the first degree, criminal possession of aweapon in the second degree and criminal impersonation in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of, inter alia, attempted robbery in the first degree (Penal Law §§110.00, 160.15 [2]) and burglary in the first degree (§ 140.30 [1]) and, in appeal No. 2,defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, threecounts of robbery in the first degree (§ 160.15 [4]). We agree with defendant in eachappeal that his waiver of the right to appeal was invalid inasmuch as the record fails to establishthat "defendant understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (People v Williams, 59 AD3d 339, 340[2009], lv denied 12 NY3d 861 [2009]; see People v Daniels, 68 AD3d 1711[2009]; see generally People v Lopez, 6 NY3d 248, 256-257 [2006]). We further agreewith defendant that Supreme Court failed to conduct a specific inquiry to determine whether heunderstood that each plea was conditioned on his withdrawal of all motions pending and decidedand whether he agreed to those conditions (cf. People v Williams, 55 AD3d 759[2008]; People v Toye, 264 AD2d 401 [1999]; People v Perez, 247 AD2d 341[1998], lv denied 91 NY2d 976 [1998]). We thus conclude that defendant is notprecluded from contending in each appeal that the court erred in refusing to suppress certainevidence.
We nevertheless reject the contention of defendant in appeal No. 1 that the court erred inrefusing to suppress evidence obtained as a result of an allegedly unlawful seizure of his person.Contrary to defendant's contention, "at the time the police forcibly detained defendant, they had[a] reasonable suspicion . . . that he was involved in the robbery and thus wereentitled to detain him for purposes of a showup identification procedure" (People vMartinez, 39 AD3d 1159, 1160 [2007], lv denied 9 NY3d 867 [2007]). Within threeto five minutes of the robbery, a police officer observed defendant approximately one block fromthe scene, and he generally matched the description provided by the victim and broadcast overthe police radio. "Although defendant did [*2]not 'perfectlymatch' the victim's description of the suspect, 'there were enough similarities to provide thepolice with, at a minimum, the right to make a common-law inquiry' " (People vWilliams, 30 AD3d 980, 981 [2006], lv denied 7 NY3d 852 [2006]). As defendantapproached the officer, the officer observed that defendant was wearing the business logo thathad been described in the radio dispatches, and thus the officer had the requisite reasonablesuspicion to detain defendant for a showup identification procedure (see Martinez, 39AD3d at 1160; People v Evans, 34 AD3d 1301, 1302 [2006], lv denied 8 NY3d845 [2007]; People v Casillas, 289 AD2d 1063, 1063-1064 [2001], lv denied 97NY2d 752 [2002]).
We reject the contention of defendant in appeal No. 2 that the court erred in refusing tosuppress his statement to the police. Contrary to the contention of defendant, we conclude that hedid not unequivocally invoke his right to counsel before his custodial interrogation began.
It is well settled that "once a defendant in custody invokes his [or her] right to counsel. . . a subsequent waiver of rights outside the presence of [defense] counsel cannotbe given legal effect" (People v Cunningham, 49 NY2d 203, 210 [1980]; see Peoplev Ramos, 99 NY2d 27, 33 n 3 [2002]; People v West, 81 NY2d 370, 373-375[1993]). Here, however, defendant did not make an unequivocal request for an attorney torepresent him on the charges for which he was in custody. At the time he was taken into custody,defendant had an attorney to represent him on the unrelated charges that are at issue in appealNo. 1. At the police station, defendant mentioned to an officer that he had an appointment withhis attorney that morning, and he asked that officer if he could call the attorney. The officer tolddefendant that he would have to wait, and defendant never mentioned the attorney again duringhis subsequent interviews with police investigators.
"Whether a particular request is or is not unequivocal is a mixed question of law and fact thatmust be determined with reference to the circumstances surrounding the request[,] including thedefendant's demeanor, manner of expression and the particular words found to have been used bythe defendant" (People v Glover, 87 NY2d 838, 839 [1995]). In this case, whendefendant mentioned his attorney, he was not being questioned and his request to call theattorney was made in the context of attending a scheduled appointment with that attorneyconcerning unrelated charges. Indeed, defendant's reason for calling the attorney could have beento cancel that appointment (see People v Ramirez, 59 AD3d 206 [2009], lvdenied 12 NY3d 858 [2009]; see also People v Mitchell, 2 NY3d 272, 276[2004]; People v Jackson, 43 AD3d 1181 [2007], lv denied 9 NY3d 1006, 1007[2007]).
Contrary to the further contention of defendant in appeal No. 2, the police did not improperlycapitalize on his concern for his pregnant girlfriend. " '[I]t is not an improper tactic for police tocapitalize on a defendant's sense of shame or reluctance to involve his family in a pendinginvestigation absent circumstances [that] create a substantial risk that a defendant might falselyincriminate himself' " (People v Mateo, 2 NY3d 383, 415-416 [2004], cert denied542 US 946 [2004]; see People v Young, 197 AD2d 874 [1993], lv denied82 NY2d 854 [1993]). Here, there is no evidence in the record of the suppression hearing that thepolice promised "not to arrest defendant's girlfriend if defendant 'talked' " (People vKeene, 148 AD2d 977, 978 [1989]; cf. People v Helstrom, 50 AD2d 685 [1975],affd 40 NY2d 914 [1976]), and there were no other circumstances creating a substantialrisk that defendant would falsely incriminate himself (see CPL 60.45 [2] [b] [i]).Present—Smith, J.P., Centra, Fahey and Pine, JJ.