| People v Guinyard |
| 2010 NY Slip Op 03570 [72 AD3d 1545] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LawrenceGuinyard, Appellant. (Appeal No. 2.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered August 6, 2008. The judgment convicted defendant, upon a jury verdict, of murder inthe second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence isunanimously dismissed and the judgment is otherwise affirmed.
Memorandum: Defendant was convicted following a jury trial of murder in the seconddegree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the third degree(§ 265.02 [1]). As a result of an error in the original sentence, defendant was resentencedand, in appeal No. 1, he appeals from the resentence. In appeal No. 2, defendant appeals from thejudgment of conviction. Addressing first appeal No. 2, we conclude that Supreme Court properlyrefused to suppress defendant's statements to the police. Contrary to the contention of defendant,the court properly concluded that he was not in custody when the police were questioning him. Itis well settled that, in determining whether a defendant was in custody, "the subjective beliefs ofthe defendant are not to be the determinative factor. The test is not what the defendant thought,but rather what a reasonable [person], innocent of any crime, would have thought had he [or she]been in the defendant's position" (People v Yukl, 25 NY2d 585, 589 [1969], certdenied 400 US 851 [1970]; seePeople v Paulman, 5 NY3d 122, 129 [2005]). The evidence presented at the suppressionhearing established that "defendant, inter alia, voluntarily agreed to accompany the police to theprecinct, was not physically restrained, never protested or requested an attorney, and was readand waived [his] Miranda rights . . . , prior to answering questions andgiving inculpatory statements" (Peoplev Brown, 44 AD3d 966 [2007], lv denied 9 NY3d 1031 [2008]). We thusconclude that a reasonable person in defendant's position would have felt free to leave.
Contrary to the further contention of defendant, the court was not required to suppress hisstatements based on his mental disabilities. The intelligence of a defendant is only one factor tobe considered by a court when determining whether his or her waiver of Miranda rightswas voluntary (see People v Williams, 62 NY2d 285, 288-290 [1984]). Here, theevidence presented at the suppression hearing established "that defendant understood themeaning of the Miranda warnings prior to waiving his rights" (People v Green, 60 AD3d 1320,1322 [2009], lv denied 12 NY3d 915 [2009]; see People v Hernandez, 46 AD3d 574, 575-576 [2007], lvdenied 11 NY3d 737 [2008]; People v Jones, 41 AD3d 736 [2007], lv denied 9 NY3d877 [2007]).
Defendant contends that he was denied a fair trial based on the court's failure to impose anysanctions upon the People for their delay in turning over Brady material. The recordestablishes, however, that defendant had a meaningful opportunity to use that material (see People v Wood, 40 AD3d663, 664 [2007], lv denied 9 NY3d 928 [2007]; see generally People vCortijo, 70 NY2d 868, 870 [1987]) and, in any event, his failure to request such sanctionsrenders his contention unpreserved for our review (see generally People v Bryant, 298AD2d 845, 846 [2002], lv denied 99 NY2d 556 [2002]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We reject the furthercontention of defendant that he was denied effective assistance of counsel (see generally People v Turner, 5 NY3d476, 480 [2005]; People v Baldi, 54 NY2d 137, 147 [1981]). To the extent thatdefendant contends that defense counsel failed to make certain motions, it is well settled that thefailure to make motions with little or no chance of success does not constitute ineffectiveassistance of counsel (see People vLewis, 67 AD3d 1396 [2009]; People v DeHaney, 66 AD3d 1040 [2009]). Viewing the evidence,the law and the circumstances of this case in totality and as of the time of the representation, weconclude that defense counsel provided meaningful representation (see generally Baldi,54 NY2d at 147).
Finally, with respect to appeal No. 1, we conclude that the resentence is not unduly harsh orsevere. Present—Smith, J.P., Centra, Fahey and Pine, JJ.