| People v Solomon |
| 2010 NY Slip Op 03986 [73 AD3d 1440] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael J.Solomon, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), renderedNovember 17, 2005. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree, course of sexual conduct against a child in the first degree, course of sexual conductagainst a child in the second degree, rape in the second degree (10 counts), criminal sexual act inthe second degree, rape in the second degree (10 counts), criminal sexual act in the seconddegree (seven counts) and use of a child in a sexual performance (four counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, rape in the first degree (Penal Law § 130.35 [1]). Defendant contends that hewas denied effective assistance of counsel because County Court failed to conduct the requisitemeaningful inquiry to ensure that defendant was aware of the possible risks posed by defensecounsel's simultaneous representation of a key prosecution witness or to elicit defendant'sinformed consent to such representation (see People v McDonald, 68 NY2d 1, 8 [1986],rearg dismissed 69 NY2d 724 [1987]; People v Sutton, 220 AD2d 351 [1995],lv denied 87 NY2d 925 [1996]; People v Stewart, 126 AD2d 943, 945 [1987]).Although defense counsel disclosed the potential conflict to the court and defendant purported towaive any conflict, we conclude that defendant's waiver was invalid. We agree with defendantthat the inquiry by the court was insufficient, and a "[w]aiver occurs when a defendantintentionally relinquishes or abandons a known right" (People v Hansen, 95 NY2d 227,230 n 1 [2000]). Nevertheless, we conclude that defendant was not thereby denied effectiveassistance of counsel because he failed to establish that any "conflict affected the conduct of thedefense" (People v Ortiz, 76 NY2d 652, 657 [1990]; see People v Abar, 99NY2d 406, 410 [2003]; Sutton, 220 AD2d at 351). Indeed, contrary to the furthercontention of defendant, defense counsel's representation, viewed in its entirety and as of thetime of the representation, was meaningful (see generally People v Baldi, 54 NY2d 137,147 [1981]).
We further reject the contention of defendant that the suppression court erred in determiningthat he voluntarily waived his Miranda rights prior to making certain statements to thepolice and thus that the court erred in refusing to suppress those statements. The record of thesuppression hearing establishes that defendant voluntarily accompanied the detectives to the[*2]police station, where he was seated in an interview room andprovided with coffee. A detective then read defendant his rights from a standard Mirandawaiver form, and defendant initialed each of those rights on the form. Defendant thereafterindicated that he was willing to make a statement and stated that he had received no promisesand was not threatened in any way. Thus, affording deference to the suppression court'sdetermination (see generally People v Prochilo, 41 NY2d 759, 761 [1977]), we concludethat defendant knowingly waived his Miranda rights (see People v McAvoy, 70 AD3d 1467 [2010]; People v Shaw, 66 AD3d 1417,1418 [2009], lv denied 14 NY3d 773 [2010]). Also contrary to the contention ofdefendant, it is well settled that " 'the failure to record [his] interrogation electronically does notconstitute a denial of due process' " (People v Lomack, 63 AD3d 1658 [2009], lv denied 13NY3d 798 [2009]; see People vMendez, 50 AD3d 1526 [2008], lv denied 11 NY3d 739 [2008]), and hetherefore was not entitled to suppression of his statements in the absence of an electronicrecording of the interrogation (see People v Kunz, 31 AD3d 1191 [2006], lv denied7 NY3d 868 [2006]).
We further conclude that the court did not err in admitting in evidence tape-recordedconversations between the victim and defendant. The victim's statements were not offered fortheir truth and therefore did not constitute hearsay (see generally People v Wynn, 55 AD3d 1378, 1379 [2008], lvdenied 11 NY3d 901 [2008]). Defendant failed to preserve for our review his contention thathis "responses" to the victim constituted inadmissible pre-arrest "silence" (see generallyPeople v Nicholopoulos, 289 AD2d 1087, 1088 [2001], lv denied 97 NY2d 758[2002]) and, in any event, there is no merit to that contention. Contrary to the contention ofdefendant, he did not remain silent in response to the victim's accusations, but he instead madeinculpatory statements that were properly admitted in evidence "as legally admissible hearsayagainst [defendant]" (People v Chico, 90 NY2d 585, 589 [1997]). "[A]dmissions by aparty of any fact material to the issue are always competent evidence against him [or her],wherever, whenever, or to whomsoever made" (id. [internal quotation marks omitted];see People v Webb, 60 AD3d1291, 1292 [2009], lv denied 12 NY3d 930 [2009]; People v O'Connor, 21 AD3d1364, 1366 [2005], lv denied 6 NY3d 757 [2005]).
Defendant failed to preserve for our review his contentions that the court erred in failing toinstruct the jury with respect to the voluntariness of his statements to the police (see People vCefaro, 23 NY2d 283, 288-289 [1968]; People v Sanderson, 68 AD3d 1716, 1717 [2009]), and in failing toinstruct the jury that the consciousness of guilt charge applied to particular evidence. Defendantalso failed to preserve for our review his contention that he was deprived of a fair trial byprosecutorial misconduct during the prosecutor's opening and closing statements (seeCPL 470.05 [2]; People vBeggs, 19 AD3d 1150, 1151 [2005], lv denied 5 NY3d 803 [2005]). We declineto exercise our power to review those contentions as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
We have reviewed defendant's remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Smith, Peradotto, Lindley and Sconiers, JJ.