| People v Schluter |
| 2016 NY Slip Op 01062 [136 AD3d 1363] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael D. Schluter, Appellant. (Appeal No. 1.) |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered October 7, 2010. The judgment convicted defendant, upon his plea of guilty, ofcourse of sexual conduct against a child in the first degree, criminal sexual act in thesecond degree, criminal sexual act in the third degree, rape in the third degree and falselyreporting an incident in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of, inter alia, course of sexual conduct against a child in the firstdegree (Penal Law § 130.75 [1] [b]) and, in appeal No. 2, he appeals from ajudgment convicting him upon his plea of guilty of criminal sexual act in the third degree(§ 130.40 [2]).
Contrary to defendant's contention in appeal No. 1, County Court properly refused tosuppress statements defendant made to the police during a recorded interrogation.Defendant waived his Miranda rights at the outset of the interrogation, but hecontends that his waiver was rendered invalid by police conduct during the interrogation.Defendant failed to raise that specific contention in his motion papers or at thesuppression hearing as a ground for suppressing his statements, and thus he failed topreserve that contention for our review (see People v Brown, 120 AD3d 954, 955 [2014], lvdenied 24 NY3d 1118 [2015]). In any event, we reject his contention "that thevalidity of the waiver was vitiated by police misconduct that occurred after thewaiver" (Matter of JimmyD., 15 NY3d 417, 424 [2010]). Contrary to defendant's further contention, thecourt properly concluded that he did not make an unequivocal request for counsel duringthe interrogation (see People v Hicks, 69 NY2d 969, 970 [1987], rearg denied70 NY2d 796 [1987]; People v Regan, 21 AD3d 1357, 1358 [2005]).
We reject defendant's contention in both appeals that the court erred in denying hispro se motion to withdraw his pleas without conducting a hearing. The record of the pleaproceeding belies his contention that he did not have sufficient time to consult withcounsel (see People vGriffin, 89 AD3d 1235, 1236 [2011]) and, moreover, counsel's advice todefendant that he would likely receive a harsher sentence after trial does not constitutecoercion (see People vGriffin, 120 AD3d 1569, 1570 [2014], lv denied 24 NY3d 1084[2014]).
In view of our determination affirming the judgment in appeal No. 1, there is nobasis to grant defendant's request to reverse the judgment in appeal No. 2 and to vacatehis plea of guilty (cf. People v Fuggazzatto, 62 NY2d 862, 863 [1984]).Present—Whalen, P.J., Centra, Peradotto, Carni and Scudder, JJ.