| People v Henry |
| 2013 NY Slip Op 07338 [111 AD3d 1321] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TimHenry, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered February 1, 2010. The judgment convicted defendant, upon his plea of guilty,of vehicular manslaughter 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 plea ofguilty of vehicular manslaughter in the first degree (Penal Law § 125.13 [3]). Weagree with defendant that his waiver of the right to appeal is invalid because CountyCourt's " 'single reference to defendant's right to appeal is insufficient to establish that thecourt engage[d] the defendant in an adequate colloquy to ensure that the waiver of theright to appeal was a knowing and voluntary choice' " (People v Allen, 64 AD3d1190, 1191 [2009], lv denied 13 NY3d 794 [2009]; see People v Said, 105 AD3d1392, 1393 [2013], lv denied 21 NY3d 1019 [2013]). The court's somewhatexpanded discussion of the right to appeal on the date of sentencing, after the sentencewas pronounced, did not rectify the inadequate colloquy at the time the plea was entered(see People v Gil, 109AD3d 484, 484-485 [2013]).
We nevertheless reject defendant's contention that the court erred in refusing tosuppress his statements to the police on the ground that the statements allegedly weremade in violation of his right to counsel. The right to counsel attaches, inter alia, "when aperson in custody requests to speak to an attorney or when an attorney who is retained torepresent the suspect enters the matter under investigation" (People v Grice, 100NY2d 318, 321 [2003]; seePeople v Foster, 72 AD3d 1652, 1653 [2010], lv dismissed 15 NY3d750 [2010]). Here, defendant did not ask to speak to an attorney at any point during thepolice interrogation. Defendant's statements to the effect that he had an attorney and hisquestions whether he should have an attorney present were not an unequivocalinvocation of the right to counsel (see People v Hicks, 69 NY2d 969, 970 [1987],rearg denied 70 NY2d 796 [1987]; People v Hall, 53 AD3d 1080, 1081-1082 [2008], lvdenied 11 NY3d 855 [2008]; People v Cotton, 277 AD2d 461, 462 [2000],lv denied 96 NY2d 757 [2001]). Further, defendant failed to "present[ ] evidenceestablishing that he was in fact represented by counsel at the time of interrogation, asdefendant contended" (People vHilts, 19 AD3d 1178, 1179 [2005]). Although defendant indicated that he had alawyer in connection with his marital separation, we conclude that the lawyer "was notretained 'in the matter at issue' " (Foster, 72 AD3d at 1654, quoting People vWest, 81 NY2d 370, 373-[*2]374 [1993]). Contraryto the further contention of defendant, "the record of the suppression hearing supportsthe court's determination that the statements at issue were not rendered involuntary byreason of any alleged coercion by the police" (People v Kirk, 96 AD3d 1354, 1357 [2012], lvdenied 20 NY3d 1012 [2013]; see People v Camacho, 70 AD3d 1393, 1393-1394 [2010],lv denied 14 NY3d 886 [2010]; People v Martin, 55 AD3d 1236, 1237 [2008], lvdenied 11 NY3d 927 [2000], reconsideration denied 12 NY3d 855 [2009]).
Defendant further contends that the court erred in refusing to suppress certainidentification testimony because it was based on an unduly suggestive single-photographdisplay. We reject that contention. Where, as here, the defendant's identity is not in issue," 'suggestiveness' is not a concern" (People v Gissendanner, 48 NY2d 543, 552[1979]; see People v Frederick, 196 AD2d 791, 792 [1993], lv denied 82NY2d 894 [1993]; People v Mati, 178 AD2d 556, 556 [1991], lv denied79 NY2d 921 [1992]).
Finally, the agreed-upon sentence is not unduly harsh or severe.Present—Fahey, J.P., Peradotto, Lindley, Sconiers and Whalen, JJ.