| People v Perkins |
| 2015 NY Slip Op 00566 [124 AD3d 1062] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1](January 22, 2015)
| The People of the State of New York,Respondent, v David Perkins, Also Known as DJ,Appellant. |
Gail B. Rubenfeld, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello, for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered October 28, 2010, convicting defendant upon his plea of guilty ofthe crimes of murder in the second degree, robbery in the first degree and criminalpossession of a weapon in the second degree.
Defendant was charged with numerous crimes in connection with an incident wherehe shot and killed the victim during the course of an armed robbery. After aHuntley hearing, County Court denied defendant's motion to suppress hisstatement to police. Defendant then pleaded guilty, in satisfaction of the indictment, tomurder in the second degree, robbery in the first degree and criminal possession of aweapon in the second degree. The court sentenced him to the agreed-upon concurrentprison terms of 18 years to life on the murder conviction, 18 years followed by five yearsof postrelease supervision on the robbery conviction and 15 years followed by five yearsof postrelease supervision on the weapon possession conviction. Defendant appeals.
County Court properly found that defendant's confession to the police was knowing,intelligent and voluntary. The question of whether a statement is voluntary is a factualissue to be determined based on the totality of the circumstances, with deferenceaccorded to the suppression court's factual findings and credibility determinations (see People v Mattis, 108 AD3d872, 874 [2013], lv denied 22 NY3d 957 [2013]). Some of the factors to beconsidered in this assessment include " 'the defendant's age, experience,education, background, intelligence [*2]and capacity tounderstand the warnings,' " constitutional rights and consequences of a waiver(People v Seymour, 14AD3d 799, 801 [2005], lv denied 4 NY3d 856 [2005], quoting People vMorton, 116 AD2d 925, 926 [1986], lv denied 67 NY2d 887 [1986]).
Here, defendant was 16 years old. He was in tenth grade and received specialeducation services, but a school psychologist testified that he was not retarded and,despite certain deficits and an IQ of 77, he could understand the language used inMiranda warnings. Defendant had previously been arrested and adjudicated ayouthful offender and was on probation at the time of questioning. He had also beenquestioned by police approximately six months prior to giving the statement at issue here,had been given Miranda warnings on that occasion, and talked to the police forhours but did not admit to any wrongdoing.
County Court accepted the testimony of police officers that they read defendant theMiranda warnings before any questioning began and that he acknowledged hisunderstanding of his rights. Both the testimony and the recorded portion of his statementdemonstrate that he understood the severity of the potential charges and was notintimidated by the police, as he repeatedly challenged their tactics, accused them of lyingto him and demanded to hear the recorded interviews of others who allegedly madestatements against him. Any trickery or deception used by the police was not sofundamentally unfair as to deny defendant due process (see People v Wolfe, 103 AD3d1031, 1035 [2013], lv denied 21 NY3d 1021 [2013]). While police alloweddefendant's mother into the later portion of the interview and she encouraged him toconfess the truth, the credible testimony established that defendant was informed that hismother was not under arrest. The court did not find credible the testimony of defendantand his mother concerning threats or promises allegedly made during the interrogation.Considering the totality of the circumstances, defendant's waiver of his rights wasknowing, intelligent and voluntary. Accordingly, County Court properly declined tosuppress his statement.
We will not address defendant's current argument that his statement was obtained inviolation of his right to remain silent, as he did not preserve this argument by raising itbefore County Court (see People v Mandrachio, 55 NY2d 906, 907 [1982],cert denied 457 US 1122 [1982]; People v Wade, 146 AD2d 589, 590[1989], lv denied 73 NY2d 1023 [1989]), and we decline to exercise our interestof justice jurisdiction with respect thereto. Defendant's remaining arguments have beenreviewed and are without merit.
Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.