| People v Karlsen |
| 2017 NY Slip Op 01052 [147 AD3d 1466] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Karl Karlsen, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Barry L. Porsch, District Attorney, Waterloo, for respondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), renderedDecember 16, 2013. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of murder in the second degree (Penal Law § 125.25 [2]). Defendant contends thathis statements to his wife should have been ruled inadmissible pursuant to the statutory privilegefor marital communications (see CPLR 4502 [b]; see also CPL 60.10). Weconclude that defendant's challenge to County Court's pretrial evidentiary ruling does not survivebut rather was forfeited by his plea of guilty (see People v Alvarado, 103 AD3d 1101, 1101 [2013], lvdenied 21 NY3d 910 [2013]; Peoplev Davis, 99 AD3d 1228, 1229 [2012], lv denied 20 NY3d 1010 [2013]; see also People v Hutter, 143 AD3d574, 575 [2016], lv denied 28 NY3d 1125 [2016]; see generally People vCampbell, 73 NY2d 481, 486 [1989]).
We reject defendant's further contentions that his statements to the police should have beensuppressed on the grounds that he did not validly waive his Miranda rights at the outset ofthe interrogation, that he requested counsel during the interview, and that his statements wereinvoluntarily made in violation of his due process rights, on account of the9
Based on the record of the suppression hearing, which includes a videotape of theinterrogation, we conclude that defendant's statements were not elicited by the police in violationof defendant's due process rights (see generally Colorado v Connelly, 479 US 157, 167[1986]; People v Mateo, 2 NY3d 383, 413 [2004], cert denied 542 US 946[2004]). "It is axiomatic that the length of the interrogation period 'does not, by itself, render thestatement[s] involuntary' " (People v Clark, 139 AD3d 1368, 1369 [2016], lv denied 28NY3d 928 [2016]; see People vWeeks, 15 AD3d 845, 847 [2005], lv denied 4 NY3d 892 [2005]). In any event,taking into account that defendant was not in custody for nearly all of the interrogation, weconclude that the length of the interrogation in this case was not such that it deprived defendantof due process (see Clark, 139 AD3d at 1369; People v Gega, 74 AD3d 1229, 1231 [2010], lv denied 15NY3d 851 [2010], reconsideration denied 15 NY3d 920 [2010]; see also People v Guilford, 21 NY3d205, 212-215 [2013]; see generally People v Anderson, 42 NY2d 35, 39 [1977]).Nothing in the record before us supports defendant's contention that the police employed physicalor psychological tactics that were "so fundamentally unfair as to deny [him] due process" and"induce a false confession" (People vBradberry, 131 AD3d 800, 802 [2015] [internal quotation marks omitted]; seePeople v Tarsia, 50 NY2d 1, 11 [1980]). Based on the totality of the circumstances, weconclude that defendant's will was not overborne and that his statements to the police werevoluntarily made (see Clark, 139 AD3d at 1369; People v Sylvester, 15 AD3d 934, 935 [2005], lv denied 4NY3d 836 [2005]; see generally Mateo, 2 NY3d at 413).
Defendant's contention that the court erred in accepting his guilty plea is unpreserved for ourreview, inasmuch as defendant did not move to withdraw the plea or vacate the judgment ofconviction (see CPL 220.60 [3]; see also CPL 440.10), and nothing on the face ofthe record calls into question the voluntariness of the plea or casts significant doubt upondefendant's guilt (see People vMobley, 118 AD3d 1336, 1337 [2014], lv denied 24 NY3d 1121 [2015]; People v Robinson, 112 AD3d1349, 1349 [2013], lv denied 23 NY3d 1042 [2014]). In any event, there is no meritto the contention. Defendant was not entitled to assurances at the time of the plea that Californiawould not prosecute him for an unrelated homicide, and defendant's plea of guilty was notinduced by the contemporaneous expressions of irresolution or uncertainty whether Californiamight do so. Further, the court did not fail to discharge any duty that it might have been under toinquire into defendant's mental capacity to plead guilty (see generally People v Taylor, 13 AD3d 1168, 1169-1170 [2004],lv denied 4 NY3d 836 [2005]). Nothing on the face of the record demonstrates thatdefendant lacked a rational understanding of the nature and consequences of his plea (see People v Young, 66 AD3d1445, 1446 [2009], lv denied 13 NY3d 912 [2009]; People v Lear, 19 AD3d 1002,1002 [2005], lv denied 5 NY3d 807 [2005]).
To the extent that defendant's claims of ineffective assistance of counsel survive his guiltyplea (see generally People vVanVleet, 140 AD3d 1633, 1633 [2016], lv denied 28 NY3d 938 [2016]; People v Lucieer, 107 AD3d 1611,1612 [2013]), we conclude that those claims lack merit. Defendant received "an advantageousplea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People vFord, 86 NY2d 397, 404 [1995]). Present—Smith, J.P., DeJoseph, NeMoyer,Troutman and Scudder, JJ.