| People v Brown |
| 2014 NY Slip Op 05736 [120 AD3d 954] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBrian Brown, Appellant. |
Jeremy D. Alexander, Utica, for defendant-appellant.
Brian Brown, defendant-appellant pro se.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered March 24, 2011. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree (six counts), attempted aggravated murder, aggravated assaultupon a police officer and criminal possession of a weapon in the second degree (threecounts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of,inter alia, attempted aggravated murder (Penal Law §§ 110.00, 125.26[1] [a] [i]) and aggravated assault upon a police officer (§ 120.11),defendant contends that County Court erred in refusing to suppress his confessionbecause it was obtained in violation of his right to counsel. More specifically, defendantcontends that, after being advised of his Miranda rights, he invoked his right tocounsel by stating to the police investigators, "I don't have an attorney" and "if I can'tafford an attorney, will it make a difference?" We reject that contention. The statement "Idon't have an attorney" does not constitute an unequivocal request for counsel (seePeople v Ward, 134 AD2d 544, 544-545 [1987], lv denied 70 NY2d 1012[1988]; see also People v Cotton, 277 AD2d 461, 462 [2000], lv denied96 NY2d 757 [2001]), nor does a statement from a suspect that he or she cannotafford an attorney constitute such a request (see People v Mandrachio, 55 NY2d906, 907 [1982], cert denied 457 US 1122 [1982]). Similarly, the statement, "if Ican't afford an attorney, will it make a difference?" was merely "an inquiry about whetheror not [defendant] should contact an attorney[, which] does not, without more, constitutean unequivocal invocation of the right to counsel" (People v Hurd, 279 AD2d892, 893 [2001]; see People vVaughan, 48 AD3d 1069, 1071 [2008], lv denied 10 NY3d 845 [2008],cert denied 555 US 910 [2008]; People v Williams, 286 AD2d 918, 919[2001], lv denied 97 NY2d 763 [2002]).
We reject defendant's further contention that his confession was involuntary "in thetraditional, pre-Miranda sense." There is no evidence in the record thatdefendant's confession was "obtained from him . . . by the use or threateneduse of physical force" by the police (CPL 60.45 [2] [a]; see People v Kelly, 309AD2d 1149, 1151 [2003], lv denied 1 NY3d 575 [2003]; cf. People v Daniels, 117AD3d 1573, 1574-1575 [2014]). Indeed, the DVD of defendant's interrogationshows a well-treated suspect who joked and laughed at times with the investigators, andwho was afforded food, drink and opportunities for rest (cf. People v Guilford, 21NY3d 205, 209-213 [2013]).
Defendant's remaining contention with respect to the admissibility of his confessionis that his waiver of Miranda rights was not voluntary, knowing and intelligentbecause one of the investigators told him that he "did not need an attorney." Becausedefendant "failed to raise this specific contention at the hearing or in his motion papers,this issue is unpreserved for [our] review" (People v Grace, 245 AD2d 387, 388[1997], lv denied 91 NY2d 941 [1998]; see People v Tutt, 38 NY2d1011, 1012 [1976]; People vLouisias, 29 AD3d 1017, 1018-1019 [2006], lv denied 7 NY3d 814[2006]). In any event, we conclude that any error in failing to suppress the confession isharmless inasmuch as [*2]the proof of guilt isoverwhelming and there is no reasonable possibility that the jury would have acquitteddefendant if the confession had been suppressed (see People v Wardlaw, 18 AD3d 106, 109 [2005],affd 6 NY3d 556 [2006]; see generally People v Crimmins, 36 NY2d 230,237 [1975]). We note that, at the time of his arrest, defendant possessed the gun that wasused to shoot the deputy sheriff and fired during the two bank robberies. Defendant alsopossessed more than $5,000 in cash. Moreover, defendant wrote a letter to the DistrictAttorney while in jail, in which he stated, "The fact of the matter is I broke the law inOneida County" and that "these crimes I committed [were] done out of love for mymother and desperation for a better life." Finally, defendant matched the description ofthe person who robbed the banks and shot the deputy sheriff, and he was wearing thesame type and color of clothing.
Defendant further contends that the evidence is legally insufficient to establish thathe intended to kill the deputy sheriff, which is a necessary element of attemptedaggravated murder. We reject that contention as well. "A defendant may be presumed tointend the natural and probable consequences of his actions" (People v Mahoney, 6 AD3d1104, 1104 [2004], lv denied 3 NY3d 660 [2004]; see People v Ford, 114 AD3d1273, 1274 [2014], lv denied 23 NY3d 962 [2014]), and "[i]ntent may beinferred from conduct as well as the surrounding circumstances" (People vSteinberg, 79 NY2d 673, 682 [1992]; see People v Kelly, 79 AD3d 1642, 1642 [2010], lvdenied 16 NY3d 832 [2011]). Here, defendant's intent to kill may be inferred fromthe fact that, with a loaded gun in his hand, he extended his arm directly toward thedeputy sheriff and fired at least three shots, one of which struck the deputy sheriff in thefoot. Viewing the evidence in the light most favorable to the People, as we must (seePeople v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is a "valid lineof reasoning and permissible inferences which could lead a rational person to theconclusion" that defendant possessed the intent to kill (People v Bleakley, 69NY2d 490, 495 [1987]; seePeople v Geddes, 49 AD3d 1255, 1256 [2008], lv denied 10 NY3d 863[2008]; People v Sherry, 41AD3d 1235, 1236 [2007], lv denied 9 NY3d 926 [2007]). Moreover,viewing the evidence in light of the elements of the crime of attempted aggravatedmurder as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). Although defendant testified that he intended only toscare the victim, "it was within the province of the jury to assess [his] credibility andreject [his] testimony" (People vMercado, 113 AD3d 930, 932 [2014]).
We have reviewed defendant's remaining contentions, including those raised in hispro se supplemental brief, and conclude that they lack merit. Present—Scudder,P.J., Smith, Carni, Lindley and Whalen, JJ.