| People v Weakfall |
| 2013 NY Slip Op 05157 [108 AD3d 1115] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vAnthony A. Weakfall, Jr., Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered November 24, 2009. The judgment convicted defendant, upon his plea ofguilty, of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of murder in the second degree (Penal Law § 125.25 [2]). Defendant, whowas 15 years old, physically abused his girlfriend's 20-month-old daughter over thecourse of several weeks. On November 21, 2008, he beat the child for approximately onehour and then left her alone for several hours in the residence, where she died frommultiple blunt force traumatic injuries.
County Court properly denied defendant's motion to suppress his statements to thepolice that were made while he was questioned for approximately one hour before beingadvised of his Miranda rights. Due to the initial statements of the child's motherand defendant that a babysitter was responsible for the child's death, the police treateddefendant as a witness. During that one-hour period, "the questioning was investigative,not accusatory" (People v Centano, 76 NY2d 837, 838 [1990]) and, according tothe testimony of a police witness at the suppression hearing, defendant was "free to leavethe unlocked interview room at any time" (see id.; cf. People v Lee, 96 AD3d1522, 1526 [2012]). The atmosphere of the interview was not "coercive"(Centano, 76 NY2d at 838), and the interview was approximately one hour induration (see People vCordato, 85 AD3d 1304, 1309-1310 [2011], lv denied 17 NY3d 815[2011]). As soon as defendant admitted his involvement, the police treated him as asuspect, read defendant his Miranda rights, and complied with the proceduralprotections of CPL 120.90 (7) and Family Court Act § 305.2. We thus agree withthe suppression court that defendant was not "in custody" during that one-hour period forpurposes of Miranda, CPL 120.90 (7), or Family Court Act § 305.2(see Centano, 76 NY2d at 837-838; People v Kelley, 91 AD3d 1318, 1318 [2012], lvdenied 19 NY3d 963 [2012]).
By pleading guilty, defendant forfeited his present challenge to the sufficiency of theevidence before the grand jury (see People v Plunkett, 19 NY3d 400, 405-406 [2012];People v Hansen, 95 NY2d 227, 233 [2000]; People v Kazmarick, 52NY2d 322, 326 [1981]). Defendant failed to preserve for [*2]our review his further contention that the court violated theterms of the plea bargain by stating at sentencing that the parole board should considerdefendant's age and the nature of the crime (see CPL 470.05 [2]). In any event,defendant's contention is without merit because the court's statement "is not binding onthe State Board of Parole" (People v Van Luc, 222 AD2d 1111, 1112 [1995],lv denied 87 NY2d 1026 [1996]; see Executive Law § 259-i [2] [c][A]).
Defendant's bargained-for sentence of a term of incarceration of 13 years to life isnot unduly harsh or severe. Defendant's claim regarding the voluntariness of his plea isnot preserved for our review because defendant did not move to withdraw his plea ormove to vacate the judgment of conviction (see People v Rosado, 70 AD3d 1315, 1315 [2010], lvdenied 14 NY3d 892 [2010]). In any event, the record demonstrates that defendant'splea was knowing, voluntary, and intelligent (see People v Seeber, 4 NY3d 780, 781-782 [2005]).Contrary to the further contention of defendant, the court properly denied his motion totransfer the action to Family Court because the People did not consent to the transfer(see CPL 210.43 [1] [b]). Also contrary to defendant's contention, the court wasnot required to conduct a hearing on the issue whether the action should be transferred toFamily Court (see CPL 210.43 [3]). Present—Smith, J.P., Fahey, Carni,Valentino and Whalen, JJ.