| People v Spoor |
| 2017 NY Slip Op 02565 [148 AD3d 1795] |
| March 31, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Ronald T.Spoor, Appellant. |
Charles J. Greenberg, Amherst, for defendant-appellant.
Barry L. Porsch, District Attorney, Waterloo, for respondent.
Appeal from a judgment of the Supreme Court, Seneca County (Daniel J. Doyle, J.),rendered February 6, 2015. The judgment convicted defendant, upon his plea of guilty, ofcriminal sexual act in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalsexual act in the first degree (Penal Law § 130.50 [3]), defendant contends thatSupreme Court erred in refusing to suppress his statement to the police. We reject thatcontention. The court properly determined that defendant was not in custody when he made hisadmission to a police investigator. The evidence at the suppression hearing established thatdefendant voluntarily accompanied the investigator to a police station while seated in the frontpassenger seat of an unmarked vehicle, was cooperative, and was never restrained in any way,and the police conducted only investigatory rather than accusatory questioning (see People v Murphy, 43 AD3d1276, 1277 [2007], lv denied 9 NY3d 1008 [2007]; People v Williams, 283AD2d 998, 999 [2001], lv denied 96 NY2d 926 [2001]). Defendant then agreed toundergo a polygraph examination, and he voluntarily accompanied the investigator to anotherpolice station in the front seat of the vehicle and was offered food along the way (see People v Serrano, 14 AD3d874, 875 [2005], lv denied 4 NY3d 803 [2005]). Another police investigatorprovided Miranda warnings prior to administering the polygraph examination, whichproduced an inconclusive result, but defendant subsequently made his admission to theinvestigator during a further interview after acknowledging that he was voluntarily present andremained willing to speak. Under those circumstances, we conclude that "a reasonable person,innocent of any crime, would not have thought he or she was in custody if placed in defendant'sposition" (People v Smielecki, 77AD3d 1420, 1421 [2010], lv denied 15 NY3d 956 [2010]; see generally People vYukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]).
In any event, defendant validly waived his Miranda rights prior to making hisadmission to the investigator. Contrary to defendant's contention, the Miranda warningshe was provided were not deficient. "In determining whether police officers adequately conveyedthe [Miranda] warnings, . . . [t]he inquiry is simply whether the warningsreasonably conve[y] to [a suspect] his [or her] rights as required by Miranda" (Floridav Powell, 559 US 50, 60 [2010] [internal quotation marks omitted]; see People v Dunbar, 24 NY3d304, 315 [2014], cert denied 575 US &mdash, 135 S Ct 2052 [2015]). Here, weconclude that "the warnings given to defendant reasonably apprised him of his rights" (People v Bakerx, 114 AD3d 1244,1247 [2014], lv denied 22 NY3d 1196 [2014]). Contrary to defendant's furthercontention, despite his purported literacy deficiencies, the record of the suppression hearingsupports the court's determination that defendant knowingly and intelligently waived hisMiranda rights before making the admission (see People v Williams, 62 NY2d285, 288-289 [1984]; People v Bray, 295 AD2d 996, 997 [2002], lv denied 98NY2d 694 [2002]).
Contrary to defendant's further contention, under the circumstances of this case, the fact thathe was transported to a second police station and spent several hours with the police, and that thepolice conducted a polygraph examination, did not render his admission involuntary (seeSerrano, 14 AD3d at 875; see alsoPeople v Ellis, 73 AD3d 1433, 1434 [2010], lv denied 15 NY3d 851 [2010];see generally People v Tarsia, 50 NY2d 1, 11 [1980]).
Defendant's contention that he was denied effective assistance of counsel survives his guiltyplea "only insofar as he demonstrates that 'the plea bargaining process was infected by [the]allegedly ineffective assistance or that defendant entered the plea because of [his] attorney['s]allegedly poor performance' " (People v Rausch, 126 AD3d 1535, 1535 [2015], lv denied26 NY3d 1149 [2016] [internal quotation marks omitted]). Here, to the extent that defendantcontends that he entered the plea because of his attorney's allegedly poor performance, i.e.,defense counsel's failure to investigate the crimes properly and to obtain material fromdefendant's federal prosecution for potentially impeaching a police witness, that contention is notproperly before us because it involves matters outside the record on appeal and thus must beraised by way of a motion pursuant to CPL article 440 (see People v Bradford, 126 AD3d 1374, 1375 [2015], lvdenied 26 NY3d 926 [2015]; Rausch, 126 AD3d at 1535-1536).
Defendant failed to preserve for our review his further contention that his guilty plea was notknowingly and voluntarily entered inasmuch as he did not move to withdraw the plea or to vacatethe judgment of conviction (see People vAlexander, 132 AD3d 1412, 1413 [2015], lv denied 27 NY3d 1148 [2016]).Moreover, "[t]his case does not fall within the rare exception to the preservation requirement setforth in People v Lopez (71 NY2d 662, 666 [1988]), inasmuch as nothing in the pleacolloquy casts significant doubt on defendant's guilt or the voluntariness of the plea"(Alexander, 132 AD3d at 1413 [internal quotation marks omitted]). In any event, weconclude that defendant's contention is without merit. Present—Smith, J.P., Peradotto,DeJoseph, NeMoyer and Scudder, JJ.