| People v Vargas |
| 2013 NY Slip Op 06152 [109 AD3d 1143] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vDariana Vargas, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered June 19, 2009. The judgment convicted defendant, upon her plea of guilty, ofrobbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea ofguilty of robbery in the first degree (Penal Law § 160.15 [3]). We rejectdefendant's contention that the oral and written statements she made to policeinvestigators should have been suppressed because she was in custody at the time thosestatements were made. County Court's determination after a Huntley hearing thatdefendant was not in custody at that time will not be disturbed unless it is clearlyerroneous (see People vSchroo, 87 AD3d 1287, 1288 [2011], lv denied 19 NY3d 977 [2012]).Here, the court's decision to credit the testimony of the police investigator over that ofdefendant is entitled to deference (see People v Shaw, 66 AD3d 1417, 1417-1418 [2009],lv denied 14 NY3d 773 [2010]), and the record supports the court's conclusionthat defendant was not in custody because a reasonable person in defendant's position,innocent of any crime, would have believed that he or she was free to leave (seePeople v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970];see generally People v Morales, 281 AD2d 182, 182 [2001], lv denied 96NY2d 922 [2001]). Defendant voluntarily accompanied the police investigators to theirunmarked vehicle that was parked in front of her home and voluntarily answeredquestions (see Yukl, 25 NY2d at 591). Defendant was informed that she was freeto leave, the vehicle doors were unlocked and could be opened by her at any time, theentire interview lasted slightly under an hour, she was not handcuffed, and she neverasked to leave (see People vWeakfall, 108 AD3d 1115, 1115-1116 [2013]; see also People vWilbert, 192 AD2d 1109, 1109-1110 [1993], lv denied 81 NY2d 1082[1993]; People v Anderson, 145 AD2d 939, 939-940 [1988], lv denied73 NY2d 974 [1989]).
We reject defendant's further contention that she was denied effective assistance ofcounsel at the Huntley hearing. Defendant was provided meaningfulrepresentation inasmuch as the facts and circumstances relevant to the determination ofwhether defendant was in custody when she was questioned were brought to the court'sattention (see People v Baldi, 54 NY2d 137, 150 [1981]; see generally People[*2]v Centano, 76 NY2d 837, 838 [1990]; Peoplev Johnson, 91 AD2d 327, 330 [1983], affd 61 NY2d 932 [1984]; Peoplev Arcese, 148 AD2d 460, 461 [1989], lv denied 74 NY2d 661 [1989]), andmere speculation that a more vigorous cross-examination might have undermined thecredibility of the People's witness is insufficient to establish that defense counsel wasineffective (see People vWittman, 103 AD3d 1206, 1207 [2013], lv denied 21 NY3d 915[2013]). Present—Smith, J.P., Carni, Sconiers and Valentino, JJ.