| People v McGuay |
| 2014 NY Slip Op 06420 [120 AD3d 1566] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRonald P. McGuay, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
David W. Foley, District Attorney, Mayville (Patrick E. Swanson of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered October 3, 2011. The judgment convicted defendant, upon his plea of guilty, ofcourse of sexual conduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of course of sexual conduct against a child in the second degree (Penal Law§ 130.80 [1] [a]), defendant contends that he was deprived of hisconstitutional right to present a defense because County Court denied his request to servea late notice of intent to present psychiatric evidence (see CPL 250.10 [2]). Bypleading guilty, however, defendant forfeited his right to challenge the court's denial ofhis motion (see People v Di Donato, 87 NY2d 992, 993 [1996]). For the samereason, defendant also forfeited his right to challenge the court's denial of his request forthe appointment of a special prosecutor (see generally People v Taylor, 65 NY2d1, 5 [1985]).
We reject defendant's contention that the court erred in denying his motion tosuppress incriminating statements he made to law enforcement officials. As the courtproperly determined, defendant was not in custody when he made the statements, andthus the police were not required to advise defendant of his Miranda rights (see generally People vPaulman, 5 NY3d 122, 129 [2005]; People v Berg, 92 NY2d 701, 704[1999]; People v Beard, 1AD3d 886, 886 [2003], lv denied 1 NY3d 624 [2004]). The evidence at theHuntley hearing establishes that defendant voluntarily accompanied the police tothe station for both interviews, he was not restrained in any way during either interview,and he was allowed to go home at the conclusion of the interviews. Moreover, defendantwas specifically advised by one of the investigators that he was free to leave at anytime.In our view, a reasonable person in defendant's position who was innocent of any crimewould not have believed that he or she was in custody (see People v Yukl, 25NY2d 585, 589 [1969], cert denied 400 US 851 [1970]; People v Lunderman, 19 AD3d1067, 1068 [2005], lv denied 5 NY3d 830 [2005]).
Although defendant contends that his plea was involuntarily entered, he failed topreserve his contention for our review inasmuch as he did not move to withdraw his pleaor to vacate the judgment of conviction (see People v Cubi, 104 AD3d 1225, 1226 [2013], lvdenied 21 NY3d 1003 [2013]), and the narrow exception to the preservation ruledoes not apply because defendant said nothing during the plea colloquy that "clearlycasts significant doubt upon the defendant's guilt or otherwise calls into question thevoluntariness of the plea" (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Hall, 119 AD3d1349, 1349 [2014]).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Smith, J.P., Fahey, Lindley, Whalen and DeJoseph, JJ.