| People v Woods |
| 2012 NY Slip Op 02193 [93 AD3d 1287] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Wesley L.Woods, Jr., Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered July23, 2008. The judgment convicted defendant, upon a jury verdict, of murder in the second degreeand robbery in the first degree.
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 ofmurder in the second degree (Penal Law § 125.25 [3] [felony murder]) and robbery in thefirst degree (§ 160.15 [4]). Defendant failed to preserve for our review his contention that[*2]County Court erred in refusing to suppress his oral andwritten statements to the police based on an unnecessary delay in his arraignment (see People v Fuentes, 52 AD3d1297, 1298 [2008], lv denied 11 NY3d 736 [2008]; People v Hayward, 48 AD3d 209,210 [2008], lv denied 10 NY3d 840 [2008]). We decline to exercise our [*3]power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Contrary to defendant's further contention,the court properly determined that those statements were voluntary. Although defendant wasdetained and questioned by the police for approx[*4]imately 10hours, "that [fact] does not, by itself, render the statement[s] involuntary" (People v Weeks, 15 AD3d 845,847 [2005], lv denied 4 NY3d 892 [2005]). Here, there is no indication in the record ofthe suppression hearing that defendant sought to end the interrogation or that his alleged lack ofsleep left him " 'so . . . [*5]fatigued that he wasincapable of intelligently waiving his rights or comprehending the meaning of his statement[s]' "(People v Towndrow, 236 AD2d 821, 822 [1997], lv denied 89 NY2d 1016[1997]). In addition, the police officer's generalized comment to defendant regarding the benefitsof cooperating with the police [*6]did not constitute a promise ofleniency that created "a substantial risk that the defendant might falsely incriminate himself"(CPL 60.45 [2] [b] [i]; see People vLugo, 60 AD3d 867, 868 [2009]). We conclude that probable cause for defendant'sarrest and detention was established by the circumstances of his capture (see People [*7]v Conner, 15 AD3d 843, 844 [2005], lv denied 4NY3d 885 [2005]).
The court also properly refused to suppress the clothes that defendant was wearing when hewas arrested and interviewed by the police. Police officers may properly seize an object in plainview without a warrant in the event that they are lawfully in the position from which the object isviewed, they have lawful access to the object and the object's incriminating nature is immediatelyapparent (see People v Brown, 96 NY2d 80, 88-89 [2001]). Here, the clothes worn bydefendant were in plain view when the police captured and arrested him, and brought him to thepolice station for questioning. The clothing fit the general description given by a witness to thecrimes and as depicted in a video tape recovered by the police from a security camera in the storeat which the crimes occurred. "Under the circumstances, the officers had the authority, [pursuantto] the plain view doctrine, to seize defendant's [clothing]" (People v Stein, 306 AD2d943, 943 [2003], lv denied 100 NY2d 599 [2003], 1 NY3d 581 [2003]). Defendant'scontention that he was denied effective assistance of counsel involves matters outside the recordon appeal and thus is properly raised by way of a motion pursuant to CPL article 440 (see People v Borcyk, 60 AD3d1489, 1490 [2009], lv denied 12 NY3d 923 [2009]; People v Barnes, 56 AD3d 1171[2008]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Fahey, Carni and Sconiers, JJ.