| People v Coley |
| 2015 NY Slip Op 05227 [129 AD3d 1327] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKhari Coley, Appellant. |
Salvatore Adamo, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joshua J. Povill of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered February 15, 2013, upon a verdict convicting defendant of the crime ofrobbery in the second degree (three counts).
The victim, a delivery person for a Chinese restaurant, was attacked and robbed bytwo men, one of whom brandished what appeared to be a handgun. The followingmorning, the investigation of the crime led police to the residence of defendant'sgirlfriend, where defendant was found hiding in a bedroom closet. He then voluntarilyaccompanied detectives to the police station where he was questioned and eventuallyadmitted that, on the night of the robbery, he had possessed a BB gun that was laterrecovered from the same closet were he had been found. Defendant was indicted on threecounts of robbery in the second degree and, after a jury trial, he was convicted of allthree counts. He was sentenced, as a second felony offender, to an aggregate prison termof 15 years, followed by five years of postrelease supervision. He now appeals.
Defendant argues that the entirety of his videotaped interview with two policedetectives should have been suppressed on the ground that he was subjected to custodialinterrogation without first being informed of his Miranda rights. Following aHuntley hearing and a review of the videotape, County Court determined thatdefendant's interview was noncustodial for the first 12 minutes, but thereafter becamecustodial as the detectives' questioning grew more accusatory and confrontational innature. The court suppressed defendant's statements to police after that point, as noMiranda warnings had yet been given. Mindful that County Court's findings[*2]regarding defendant's custodial status are entitled togreat deference, we are not persuaded that the court abused its discretion in allowing thefirst 12 minutes of defendant's videotaped interview with police to be played at trial(see People v Yukl, 25 NY2d 585, 588, 591-592 [1969], cert denied 400US 851 [1970]; People vPhillips, 55 AD3d 1145, 1148 [2008], lv denied 11 NY3d 899 [2008];People v Aldrich, 243 AD2d 856, 857 [1997], lv denied 91 NY2d 888[1998]). Further, we agree with County Court that defendant was not deprived of hisright to counsel during the interview, inasmuch as defendant was not in custody on hispending, unrelated charges for which he had legal representation. He was, therefore, freeto waive his right to counsel in the instant matter (see People v Steward, 88NY2d 496, 501-502 [1996]; People v Lawrence, 1 AD3d 625, 626 [2003], lvdenied 1 NY3d 630 [2004]).
Defendant also argues that Supreme Court erred in denying his pretrial motion tosuppress his in-court and out-of-court identification by the victim. Defendant's argumentis misplaced, however, as it is based upon an incorrect chronology of the policeinvestigation and subsequent proceedings before County Court. The record clearlyestablishes that the victim's photo array identification of defendant occurred nearly twoweeks prior to the preliminary hearing and, thus, the victim's failure to identify defendantat the preliminary hearing did not affect the propriety of the photo array. Nor is there anyother evidence that the photo array was conducted in a suggestive manner. Further, theissue of the victim's inconsistency in his ability to identify defendant was thoroughlyreviewed on cross-examination and during summation, and we defer to the jury'sassessment of the victim's credibility (see People v Bateman, 124 AD3d 983, 985 [2015], lvdenied 25 NY3d 949 [2015]; People v Casey, 61 AD3d 1011, 1013 [2009], lvdenied 12 NY3d 913 [2009]).
Turning to defendant's contention that he was denied the effective assistance ofcounsel, we must determine whether " 'the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation' " (People v Benevento, 91NY2d 708, 712 [1998], quoting People v Baldi, 54 NY2d 137, 147 [1981]).Meaningful representation simply requires that defense counsel's efforts reflect that of areasonably competent attorney (see People v Oathout, 21 NY3d 127, 128 [2013]; People v Chappelle, 126 AD3d1127, 1129 [2015]). Here, defendant alleges that he was deprived of meaningfulrepresentation when, during cross-examination of a police detective who was involved inthe investigation of defendant, defense counsel asked the detective why the BB gun,which had been discovered in the same location where police first encountered defendantthe morning after the robbery, was not tested for DNA evidence. While this questionopened the door for the People to introduce defendant's previously suppressed admissionthat he had possessed the weapon, earlier testimony from other witnesses had implicitlyestablished that defendant possessed the BB gun on the night of the robbery.Furthermore, defense counsel successfully argued that only a portion of defendant'spreviously suppressed statement should be admitted into evidence, and County Courtissued an appropriate limiting instruction. Inasmuch as the totality of the recordotherwise reflects that defense counsel provided reasonably competent representation todefendant (see People vColburn, 123 AD3d 1292, 1297 [2014], lv denied 25 NY3d 950 [2015];People v Valverde, 122AD3d 1074, 1078 [2014]; People v Cioto, 80 AD3d 875, 876 [2011], lvdenied 16 NY3d 829 [2011]), we conclude that he received meaningfulrepresentation.
We reject defendant's argument that his sentence was excessive. Although themaximum allowable sentence was imposed (see Penal Law§§ 70.06 [3] [c]; 160.10 [1], [2] [a], [b]), County Court consideredappropriate factors, including the violent nature of the crime, defendant's lack of remorseand his extensive criminal history. Our review reveals no [*3]extraordinary circumstances warranting a reduction of itslength (see People v Griffin,122 AD3d 1068, 1071 [2014]; People v Card, 115 AD3d 1007, 1009 [2014], lvdenied 23 NY3d 961 [2014]; People v Murphy, 66 AD3d 1234, 1236-1237 [2009]).Finally, we have considered defendant's claims regarding County Court'sSandoval ruling and the sufficiency and weight of the evidence, and find them tobe without merit.
Lahtinen, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.