| People v Ellis |
| 2010 NY Slip Op 03980 [73 AD3d 1433] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael Ellis,Appellant. (Appeal No. 1.) |
—[*1]
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), renderedSeptember 4, 2007. The judgment convicted defendant, upon his plea of guilty, of sexual abusein the first 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 sexual abuse in the first degree (Penal Law § 130.65 [3]), and in appealNo. 2 he appeals from a judgment convicting him, upon his plea of guilty, of course of sexualconduct against a child in the first degree (§ 130.75 [1] [a]). Defendant contends in eachappeal that County Court erred in refusing to suppress his statements to the police. We note atthe outset that, although the court issued a bench decision with respect to defendant's suppressionmotion "the exception set forth in CPL 710.70 (2) allowing appellate review with respect toorders that 'finally den[y] a motion to suppress evidence' is not applicable because defendantpleaded guilty before the court issued such an order" (People v Leary, 70 AD3d 1394, 1395 [2010]). In any event, weconclude that defendant's contention is without merit. We conclude that defendant was not incustody when he made the first statement inasmuch as, under the circumstances of this case, areasonable person innocent of any crime would not have believed that he or she was in custodyat that time (see generally People v Yukl, 25 NY2d 585, 589 [1969], cert denied400 US 851 [1970]). "Because the initial statement was not the product ofpre-Miranda custodial interrogation, the post-Miranda [statement] given bydefendant cannot be considered the fruit of the poisonous tree" (People v Flecha, 195AD2d 1052, 1053 [1993]). Moreover, under the circumstances of this case, the fact thatdefendant was transported approximately 25 miles from his house to the police station and thefact that he was informed that he failed a polygraph test, viewed together or separately, did notrender defendant's statement "the product of deception, misrepresentation or improperinducement . . . and did not create a risk that defendant's will was overborne"(People v Guthrie, 222 AD2d 1084, 1084 [1995], lv denied 87 NY2d 973 [1996];see People v Tankleff, 84 NY2d 992, 994 [1994]).
To the extent that defendant may be deemed to contend that the People committed a[*2]Brady violation by failing to provide him with theresults of the polygraph test allegedly administered during the course of his interrogation, weconclude that his contention is unpreserved for our review (see People v Thompson, 54 AD3d 975, 976 [2008], lv denied11 NY3d 858 [2008]). Indeed, defendant's contention concerns matters outside the record onappeal, which contains no polygraph test results, and thus defendant's contention may properlybe raised by way of a motion pursuant to CPL article 440 (see generally People v Burroughs, 71 AD3d 1447 [2010]).Furthermore, to the extent that the contention of defendant that he received ineffective assistanceof counsel survives his plea of guilty (see People v Adams, 66 AD3d 1355 [2009], lv denied 13NY3d 858 [2009]), we conclude that defendant's contention lacks merit (see generally Peoplev Ford, 86 NY2d 397, 404 [1995]). Finally, the sentence is not unduly harsh or severe.Present—Centra, J.P., Peradotto, Lindley, Green and Gorski, JJ.