| People v DeAngelo |
| 2016 NY Slip Op 01016 [136 AD3d 1119] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Angel M. DeAngelo Sr., Appellant. |
Jeffrey L. Zimring, Albany, for appellant.
James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered May 5, 2014, convicting defendant upon his plea of guilty of thecrimes of reckless endangerment in the second degree, criminal possession of a weaponin the third degree and menacing in the second degree.
Defendant pleaded guilty to an amended indictment charging him with recklessendangerment in the second degree, criminal possession of a weapon in the third degreeand menacing in the second degree. No sentencing promises were made, and CountyCourt imposed an aggregate prison sentence of 2 to 6 years. Defendant appeals, and weaffirm.
Defendant initially asserts that a review of the grand jury minutes may disclosejurisdictional defects, an issue that survives his guilty plea (see People v Hansen,95 NY2d 227, 231-232 [2000]; People v Melendez, 48 AD3d 960, 960-961 [2008], lvdenied 10 NY3d 962 [2008]). Having reviewed the minutes, we discovered no suchinfirmities (see People v Melendez, 48 AD3d at 960-961), and see no need todirect the release of the grand jury minutes to defendant as a prelude to further motionpractice.
Next, defendant argues that statements he made several hours after sustaining agunshot wound to his head should have been suppressed as involuntary because helacked the ability to comprehend the ramifications of waiving his Miranda rights.The evidence presented at the [*2]suppressionhearing—including a video recording of the interrogation that showed defendantexecuting an acknowledgment and waiver of Mirandarights—demonstrated that defendant was informed of and understood hisMiranda warnings and was not under duress or undue influence when he madehis statements. Defendant displayed no outward signs of discomfort while beingquestioned, and his responses to the officers were, at all times, clear, coherent andappropriate (see People v Pearce, 283 AD2d 1007, 1007 [2001], lv denied96 NY2d 923 [2001]; People v Howard, 256 AD2d 1170, 1170 [1998], lvdenied 93 NY2d 874 [1999]). Defendant testified at the Huntley hearing thathe was "in pain," "drowsy" and in "a dream state" during his interrogation, but CountyCourt specifically found his testimony to be incredible. Viewing the totality of thecircumstances, and according great weight to County Court's factual findings andcredibility determinations (seePeople v Lind, 20 AD3d 765, 766 [2005], lv denied 5 NY3d 830[2005]), we conclude that defendant's statement was knowing and voluntary (see People v Legere, 81 AD3d746, 748 [2011]; People v May, 263 AD2d 215, 219 [2000], lvdenied 94 NY2d 950 [2000]).
Defendant's contention that his plea was not knowing and voluntary was notpreserved by an appropriate postallocution motion and, inasmuch as defendant did notmake any statements during the allocution that were inconsistent with his guilt or thevoluntariness of his plea, the narrow exception to the preservation requirement isinapplicable (see People vPickett, 128 AD3d 1275, 1276 [2015], lv denied 26 NY3d 933 [2015];People v Buie, 128 AD3d1281, 1281 [2015]). Finally, we are unpersuaded that County Court abused itsdiscretion in sentencing defendant and, upon review of the record, discern noextraordinary circumstances warranting a reduced sentence in the interest of justice (see People v Norton, 88 AD3d1027, 1028-1029 [2011]).
Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.