| People v Coutant |
| 2013 NY Slip Op 07216 [111 AD3d 981] |
| November 7, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnCoutant, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Paul DerOhannesian of counsel),for respondent.
Stein, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered December 6, 2011, upon a verdict convicting defendant of the crime ofburglary in the second degree.
In the course of a State Police investigation of an August 2007 burglary, it wasdiscovered that DNA evidence from the burglary scene matched with defendant's DNAfrom a state forensic database. Two police investigators subsequently visited defendant ata correctional facility, where he was serving a prison sentence for an unrelatedconviction. Defendant was brought to a facility visiting room for questioning by theinvestigators. After the investigators read defendant his Miranda warnings,defendant agreed to speak with them and ultimately confessed to having committed theburglary. Defendant was subsequently charged with one count of burglary in the seconddegree and sought to suppress his statement to the police. Following a hearing, CountyCourt denied the motion, finding, as relevant here, that defendant made his statementvoluntarily after having validly waived his Miranda rights. A jury trial ensuedand defendant was convicted as charged. Defendant was thereafter sentenced, as asecond felony offender, to a prison term of 15 years, to be followed by five years ofpostrelease supervision. Defendant now appeals, claiming, among other things, that hisstatement to the police should have been suppressed and that his sentence is harsh andexcessive.[*2]
As to the suppression motion, we begin with therecognition that "New York has long viewed the right to counsel as a cherished andvaluable protection that must be guarded with the utmost vigilance" (People v Lopez, 16 NY3d375, 380 [2011]; see People v Ramos, 99 NY2d 27, 32 [2002]). This rightattaches in various circumstances including, as pertinent here, when a person in custodyasks to speak with an attorney; once it attaches, the right cannot be waived withoutcounsel being present (see People v Lopez, 16 NY3d at 375; People vRamos, 99 NY2d at 32-33; People v Dashnaw, 85 AD3d 1389, 1390 [2011], lvdenied 17 NY3d 815 [2011]). Here, defendant argues that the investigators ignoredhis requests for an attorney and impermissibly continued to question him after he invokedhis right to counsel.
The investigators who questioned defendant testified at the suppression hearing that,at the outset of the interview, they identified themselves as investigators and readdefendant Miranda warnings from a printed card, which defendant then initialed.According to the investigators, defendant indicated that he understood the warnings andagreed to speak to them. Defendant answered their questions and one investigatormemorialized his statement in writing, which defendant ultimately read and signed. Theinvestigators unequivocally testified that defendant never asked for an attorney orattempted to stop the interview. In contrast, defendant testified that, among other things,he asked for an attorney multiple times, that his requests were either denied or ignoredand that he was prevented from leaving the interview room. County Court resolved theconflicting testimony in favor of the investigators, finding them to be "forthright, candid,and honest" and, inasmuch as those findings are amply supported by the record, weaccord them deference (seePeople v Heesh, 94 AD3d 1159, 1161 [2012], lv denied 19 NY3d 961[2012]; People v Judware,75 AD3d 841, 844 [2010], lv denied 15 NY3d 853 [2010]; People v Culver, 69 AD3d976, 978 [2010]; People vKuklinski, 24 AD3d 1036, 1036-1037 [2005], lv denied 7 NY3d 758,814 [2006]).
Further, contrary to defendant's contention, the investigators were not required to askdefendant if he was represented by an attorney before questioning him. Althoughdefendant was incarcerated at the time the investigators questioned him, inasmuch as hewas serving a sentence on a prior conviction, uncounseled interrogation on the burglarycharge was permissible (see People v Bing, 76 NY2d 331, 344 [1990];People v Robles, 72 NY2d 689, 695 [1988]; People v Colwell, 65 NY2d883, 885 [1985]), and there were no circumstances that would have reasonably led theinvestigators to believe that there were any pending matters on which he was currentlyrepresented by an attorney (compare People v Lopez, 16 NY3d at 377; People v McLean, 109 AD3d670, 671-672 [2013]).
Defendant's claim that his sentence is harsh and excessive is also unavailing.Notwithstanding that defendant received the maximum allowable sentence, when weconsider all of the circumstances, particularly defendant's extensive criminal history andhis lack of remorse for his actions, we discern no extraordinary circumstances or abuse ofCounty Court's discretion warranting modification of the sentence (see People v Green, 108 AD3d782, 787 [2013], lv denied 21 NY3d 1074 [2013]; People v Castellano, 100AD3d 1256, 1258 [2012], lv denied 20 NY3d 1096 [2013]).
We have examined defendant's remaining contention that he was denied the effectiveassistance of counsel and find it to be without merit.
Rose, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.