| People v Panton |
| 2014 NY Slip Op 00732 [114 AD3d 450] |
| February 6, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Nadine Panton, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John W. Carter, J., at hearing; Ann M.Donnelly, J., at jury trial and sentencing), rendered December 21, 2010, convictingdefendant of murder in the second degree and robbery in the second degree, andsentencing her to an aggregate term of 25 years to life, unanimously modified, on thelaw, to the extent of vacating the DNA data bank fee, and reducing the amounts of themandatory surcharge and crime victim assistance fees from $250 and $20 to $200 and$10, respectively, and otherwise affirmed.
The court properly denied defendant's suppression motion. There is no basis fordisturbing the court's credibility determinations.
The record supports the court's determination that defendant's statements werevoluntary and not the product of coercion. Defendant did not preserve her argument thatthe statements she made after receiving Miranda warnings should have beensuppressed as the product of custodial interrogation before the warnings wereadministered (see e.g. People vMedina, 93 AD3d 459 [1st Dept 2012], lv denied 19 NY3d 999 [2012]),and we decline to reach the issue in the interest of justice. As an alternative holding, wefind that suppression was not warranted. Even assuming that the detective's display todefendant of a crime scene photograph of the murder victim, shortly before giving thewarnings, constituted the functional equivalent of interrogation, defendant made noincriminating statements until after the warnings were administered, and herpost-Miranda statements were attenuated from the display of the photo (see People v White, 10 NY3d286 [2008]).
Defendant's arrest did not violate Payton v New York (445 US 573 [1980]),as the record demonstrates that the detectives entered defendant's apartment with herconsent. Since the detectives did not mention a probation warrant until after defendanthad already let them into her apartment, and since the warrant was not the basis fordefendant's arrest, the fact that the warrant proved to be invalid does not affect anyFourth Amendment issue in this case.
Defendant's ineffective assistance of counsel claim, based on counsel's failure topreserve the Miranda issue, is unreviewable on direct appeal because it involvesmatters not reflected in, or fully explained by, the record (see People v Rivera, 71NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly,since defendant has not made a CPL 440.10 [*2]motion,the merits of the ineffectiveness claim may not be addressed on appeal. In the alternative,to the extent the existing record permits review, we find that defendant received effectiveassistance under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).
We perceive no basis for reducing defendant's sentence.
As the People concede, since defendant committed the crime before the effectivedates of legislation increasing the mandatory surcharge and crime victim assistance fees,and imposing a DNA data bank fee, defendant's sentence must be modified accordingly.Concur—Sweeny, J.P., Andrias, Freedman, Richter and Clark, JJ.