| People v Whitted |
| 2014 NY Slip Op 03299 [117 AD3d 1179] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vStanley Whitted, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Schenectady County (Hoye,J.), rendered December 14, 2010, convicting defendant upon his plea of guilty of thecrime of attempted burglary in the second degree.
After being identified by a witness as the perpetrator of an attempted burglary,defendant was arrested and charged in a two-count indictment with attempted burglary inthe second degree and criminal mischief in the fourth degree. Defendant moved tosuppress the statement he gave to police while in custody and to exclude the pretrialidentification by the witness. Following a combined Wade/Huntley hearing, aJudicial Hearing Officer (Eidens, J.H.O.) determined that neither the statement providedto the police nor the pretrial identification was obtained improperly. County Court(Drago, J.) adopted those findings and denied the suppression motion. After a jury trialhad commenced, defendant pleaded guilty to attempted burglary in the second degree, infull satisfaction of the indictment, and purportedly waived his right to appeal. CountyCourt (Hoye, J.) thereafter sentenced defendant, as a second felony offender and inaccord with the plea agreement, to a prison term of 4
As a preliminary matter, we agree with defendant that his appeal waiver is invalid, asthe record does not reflect that he was advised that the right to appeal was separate anddistinct [*2]from the other rights that he was forfeiting bypleading guilty or that he understood the rights he was waiving (see People v Bradshaw, 18NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Bressard, 112 AD3d988, 989 [2013], lv denied 22 NY3d 1137 [2014]; People v Bouton, 107 AD3d1035, 1036 [2013], lv denied 21 NY3d 1072 [2013]; People v Gilbert, 106 AD3d1133, 1133 [2013]). Accordingly, we cannot conclude that the waiver wasknowingly, voluntarily and intelligently made.
Notwithstanding the invalidity of the appeal waiver, we affirm defendant's judgmentof conviction. Initially, after reviewing the record before us—including thetestimony from the suppression hearing and defendant's video-recordedinterrogation—we conclude that County Court (Drago, J.) properly determinedthat defendant's intoxication at the time he gave his statement to the police did not" 'rise[ ] to the level of mania or to the level where . . . defendant[was] unable to comprehend the meaning of his . . . words' " so as torender his statement involuntary (People v Baugh, 101 AD3d 1359, 1360 [2012], lvdenied 21 NY3d 911 [2013], quoting People v Scott, 47 AD3d 1016, 1020 [2008], lvdenied 10 NY3d 870 [2008]; see People v Schompert, 19 NY2d 300, 305[1967], cert denied 389 US 874 [1967]; People v Dale, 115 AD3d 1002, 1003 [2014]). PoliceDetective Thomas Adach testified at the suppression hearing that defendant had an odorof alcohol and had apparently been drinking earlier in the day, and it is apparent from thevideo recording of the interrogation that defendant was intoxicated to some degree.However, the video recording supports Adach's further testimony that defendantresponded appropriately to the questions posed to him and did not appear to be manic orconfused. For example, at one point during the interrogation, when defendant was askedto produce a DNA sample, he refused and responded in a manner that indicated hisunderstanding of his constitutional rights and the consequences of waivingthem.[FN1]
The record also establishes that Adach properly read defendant his Mirandarights at the beginning of the interrogation, that defendant communicated hisunderstanding of those rights, and he willingly spoke to Adach without requesting alawyer. Thus, when we consider the totality of the circumstances (see People v Flemming, 101AD3d 1483, 1484 [2012], lv denied 21 NY3d 942 [2013]; People v Heesh, 94 AD3d1159, 1160 [2012], lv denied 19 NY3d 961 [2012]) and accord duedeference to County Court's credibility determinations, we find that the Peopleestablished beyond a reasonable doubt that defendant voluntarily waived hisconstitutional rights (see People v Dale, 115 AD3d at 1004; People v Kidd, 112 AD3d994, 996-997 [2013]; People v Mattis, 108 AD3d 872, 874 [2013], lvdenied 22 NY3d 957 [2013]; People v Baugh, 101 AD3d at 1360-1361) andthat County Court properly refused to suppress his statement to the police.
Nor are we persuaded by defendant's contention that his identification by a witnessnear the scene of the burglary was the product of an unreasonably suggestive showupprocedure. The showup in question took place in front of the residence where the crimeoccurred within 45 minutes of when the police were contacted and, thus, was" 'conducted in close geographic and temporal proximity to the crime' "(People v Wicks, 73 AD3d1233, 1235 [2010], lv denied 15 NY3d 857 [2010], quoting People vBrisco, 99 NY2d 596, 597 [2003]; see People v Howard, 22 [*3]NY3d 388, 402 [2013]; People v Jones, 111 AD3d 1148, 1149 [2013]; People v Toye, 107 AD3d1149, 1150 [2013], lv denied 22 NY3d 1091 [2014]; People v Rivera, 101 AD3d1478, 1479 [2012], lv denied 20 NY3d 1103 [2013]; People v Mathis, 60 AD3d1144, 1145-1146 [2009], lv denied 12 NY3d 927 [2009]).
In addition, the showup was reasonable under the circumstances. The record reflectsthat none of the police officers involved made any gestures or representations to thewitness or to defendant to influence the procedure.[FN2]
The fact that defendant was brought to the scene in a police vehicle and exitedtherefrom immediately before being identified by the witness (see People vDuuvon, 77 NY2d 541, 545 [1991]; People v Starks, 37 AD3d 863, 865 [2007]) "did not renderthe procedure unduly suggestive or create a substantial likelihood of misidentification"(People v Robinson, 101AD3d 1245, 1246 [2012], lv denied 20 NY3d 1103 [2013]; see People vWicks, 73 AD3d at 1235; see also People v Harris, 64 AD3d 883, 884 [2009], lvdenied 13 NY3d 836 [2009]; People v Mathis, 60 AD3d at 1146; People v Armstrong, 11 AD3d721, 722 [2004], lv denied 4 NY3d 760 [2005]). Thus, County Courtproperly denied defendant's motion to suppress such identification.
Defendant failed to preserve his claim that the People committed a Bradyviolation by failing to disclose the grand jury testimony and affidavit of the identifyingwitness prior to the Wade hearing, as he did not move to reopen the suppressionhearing after receiving such testimony (see CPL 710.40 [4]; People vGraham, 283 AD2d 885, 888 [2001], lv denied 96 NY2d 940 [2001]; see also People v Brummel,103 AD3d 805, 806 [2013], lv denied 21 NY3d 941 [2013]). In any event,such claim is without merit as the testimony in question was probative of the weight to beaccorded to the witness's identification, not to the suggestiveness of the showupprocedure and, therefore, could not have impacted the decision to suppress theidentification (see People v Clark, 88 NY2d 552, 555 [1996]; People v Flow, 99 AD3d549, 550 [2012], lv denied 20 NY3d 1061 [2013]).
Defendant's challenge to the severity of his sentence is also unavailing. County Court(Hoye, J.) acknowledged defendant's mental health issues and history of substance abuse,and sentenced defendant in accord with the plea agreement to a significantly shorter termof incarceration than he could have received if convicted after trial. Consideringdefendant's extensive criminal record, and the record as a whole, we perceive no abuse ofdiscretion or extraordinary circumstance warranting a reduction of the sentence in theinterest of justice (see People vCrump, 107 AD3d 1046, 1047 [2013], lv denied 21 NY3d 1014 [2013];People v Briel, 36 AD3d1081, 1082 [2007], lv denied 8 NY3d 919 [2007]; People v Hill, 11 AD3d817, 818 [2004]).
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:While it is also apparentfrom the video recording that defendant became increasingly angry and frustrated duringthe interrogation—at times cursing and shouting, both in and out of the presenceof the officers—defendant's ability to communicate with the officers was notcompromised.
Footnote 2:We also note that thevictim was unable to identify defendant during a similar showup conducted previously.Significantly, the other witness was not within earshot during that showup and did notspeak with the victim prior to identifying defendant.