| People v Burkett |
| 2012 NY Slip Op 06080 [98 AD3d 746] |
| August 29, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v GaryBurkett, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio and Steven A.Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert,J.), rendered May 6, 2010, convicting him of robbery in the second degree and grand larceny inthe fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing, of those branches of the defendant's omnibus motion which were tosuppress his statements to law enforcement officials and physical evidence.
Ordered that the judgment is affirmed.
The complainant, a taxi driver, testified that the defendant and his accomplice entered histaxi and directed him to the 1400 block of Lincoln Terrace, in Peekskill, Westchester County.Upon arriving at that location, the defendant pointed his left hand, which was wrapped in a redsweater, at the complainant, and demanded money. Believing that the defendant had a gun underthe sweater, the complainant handed over the money he had, and the defendant and hisaccomplice fled. The police arrived at the complainant's location shortly thereafter, and thecomplainant pointed out where the defendant and his accomplice had gone. The police pursuedand captured the defendant and his accomplice. A red sweater was recovered from a nearby yard.
A detective later interviewed the defendant, who confessed to the crime. A videotaperecording of the confession and a signed Miranda waiver (see Miranda v Arizona,384 US 436 [1966]) were entered into evidence at a suppression hearing. The defendant testifiedat the hearing and did not dispute the contents of the videotaped confession, nor did he disputethat he was read his Miranda rights. Instead, he testified that his accomplice was amember of the "Bloods" street gang, and that the accomplice told the defendant that thedefendant would be attacked by other gang members in prison if he did not take fullresponsibility for the crime. The hearing court, inter alia, denied those branches of thedefendant's omnibus motion which were to suppress the confession and the red sweater.Thereafter, at trial, a jury convicted the defendant of robbery in the second degree and grandlarceny in the fourth degree. The defendant appeals from the judgment of conviction, and weaffirm.
"A confession is 'involuntarily made' when it is obtained by a public servant engaged [*2]in law enforcement activity by means of any promise or statementof fact which creates a substantial risk that the defendant might falsely incriminate himself"(People v Mateo, 2 NY3d 383, 413 [2004], cert denied 542 US 946 [2004]).Indeed, a finding that a confession was not made voluntarily must be based on a finding of "'coercive police activity' " (id., quoting Colorado v Connelly, 479 US 157, 167[1986]). Here, at the suppression hearing, the People met their burden of proving beyond areasonable doubt that the defendant's confession was made voluntarily, and the defendantpresented no evidence that the police were involved in the alleged threat made by his accomplice(see People v Griffin, 81 AD3d743, 744 [2011]; People v Reyes, 190 AD2d 693, 694 [1993]; People vWilson, 143 AD2d 786, 787 [1988]). Furthermore, contrary to the contention of thedefendant in his pro se supplemental brief, the hearing court properly denied his application tocall a certain witness who had been incarcerated with his accomplice. At the suppression hearing,the defendant's attorney represented that the witness would testify that the defendant's accompliceadmitted to threatening the defendant. However, since the witness had nothing to offer regardingpolice involvement in the alleged threat, the testimony would have been both immaterial andcumulative (see People v Fowler, 61AD3d 698 [2009]). Therefore, the hearing court properly denied that branch of thedefendant's omnibus motion which was to suppress his confession.
The hearing court also properly denied that branch of the defendant's omnibus motion whichwas to suppress the red sweater. "Where [as here] a defendant abandons property, there is nosearch or seizure" (People v Hogya, 80 AD2d 621, 621 [1981]).
Contrary to the defendant's contention in his pro se supplemental brief, the County Courtproperly denied his application, made during the suppression hearing, to substitute counsel. "Theright of an indigent criminal defendant to the services of a court-appointed lawyer does notencompass a right to appointment of successive lawyers at defendant's option" (People vSides, 75 NY2d 822, 824 [1990]). Counsel may be substituted at the trial court's discretion,and only where good cause is shown (see People v Porto, 16 NY3d 93, 99-100 [2010]). The defendantmust make a specific factual allegation of a serious complaint about his current counsel (id.at 100). Here, the defendant refused to tell the court why he wanted a new lawyer, and,therefore, failed to make a specific factual allegation of a serious complaint.
Contrary to the defendant's contention in his pro se supplemental brief, he waived his right tobe present during jury selection (see e.g. People v Spotford, 85 NY2d 593, 597-598[1995]).
The defendant was not deprived of the effective assistance of counsel, as defense counselprovided meaningful representation (see People v Benevento, 91 NY2d 708 [1998];People v Baldi, 54 NY2d 137 [1981]).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are unpreserved for appellate review, and, in any event, without merit. Dillon, J.P., Balkin,Belen and Chambers, JJ., concur.