| People v Muller |
| 2017 NY Slip Op 07636 [155 AD3d 1091] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v ErnestMuller, Appellant. |
Henry C. Meier, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered July 17, 2014, upon a verdict convicting defendant of the crimes of strangulation in thesecond degree, criminal possession of a controlled substance in the third degree and criminal saleof a controlled substance in the third degree.
Defendant and the female victim first met as participants in a drug rehabilitation programmore than one year prior to July 6, 2013, when the victim invited defendant to her apartment andrequested that he bring cocaine. After defendant arrived at approximately 9:00 p.m., they tookcocaine, drank beer, smoked marihuana and had consensual sex at least twice. After defendantleft, the victim contacted the police to report that she had been raped; she acknowledged that shehad participated in the use of drugs and alcohol and in incidents of consensual sex, but reportedthat she later "came to" in her bed with defendant on top of her, holding her down by her neckwith his left hand and striking her in the face with his open right hand while raping her.
Defendant was detained for custodial interrogation approximately three weeks after theincident. After he was given Miranda warnings, he gave verbal and written statementslargely consistent with the victim's allegations, except for his assertion that all sexual conductwas consensual. In August 2013, defendant was charged in a six-count indictment with rape inthe first degree, criminal sexual act in the first degree, strangulation in the second degree,strangulation in the second degree as a sexually motivated felony, criminal possession of acontrolled substance in the third degree and criminal sale of a controlled substance in the thirddegree. Defendant moved to suppress the statement that he made to the police, and, following ahearing, County Court determined that defendant's statement was voluntary and denied themotion. After a jury trial, defendant was convicted of strangulation in the second degree, criminalpossession of a controlled substance in the third degree and criminal sale of a controlledsubstance in the third degree and acquitted of the remaining charges. He was sentenced as anonviolent predicate offender to concurrent prison terms of six years, with five years ofpostrelease supervision, on his conviction for strangulation in the second degree and three years,with three years of postrelease supervision, on each of the other two convictions. Defendant nowappeals.
Initially, we reject defendant's arguments that the statement he provided to law enforcementofficers should have been suppressed because he was not clearly informed of his Mirandarights and that his waiver of those rights was not voluntary because he was threatened with arrestif he exercised his right to remain silent. "The People bore the burden of proving thevoluntariness of defendant's statements beyond a reasonable doubt, including that any custodialinterrogation was preceded by the administration and defendant's knowing waiver of hisMiranda rights" (People vByrd, 152 AD3d 984, 985 [2017] [internal quotation marks and citations omitted]).Properly administered Miranda rights can be rendered inadequate and ineffective whenthey are contradicted by statements suggesting that there is a price for asserting the rights toremain silent or to counsel, such as foregoing "a valuable opportunity to speak with an assistantdistrict attorney, to have [the] case[ ] investigated or to assert alibi defenses" (People v Dunbar, 24 NY3d 304,316 [2014], certs denied 575 US &mdash, &mdash, 135 S Ct 2051, 2052 [2015]; see People v Cornelius, 137 AD3d663, 665-666 [2016], lv denied 27 NY3d 1149 [2016]). However, requests that aperson in custody tell his or her side of the story or statements that he or she will be released afterdoing so do not so contradict the Miranda warnings as to render them ineffective (see People v Silvagnoli, 151 AD3d443, 444 [2017]; People v Neal,133 AD3d 920, 922 [2015], lv denied 26 NY3d 1110 [2016]; People v Jemes, 132 AD3d 1361,1362 [2015], lv denied 26 NY3d 1110 [2016]; cf. People v Alfonso, 142 AD3d 1180, 1181 [2016], lvdenied 29 NY3d 946 [2017]).
A video recording of the interview of defendant conducted by Edward Watson, a policelieutenant, established that defendant received full and effective Miranda warnings. Thevideo depicts defendant asking, before he was given the Miranda warnings, whether hewould be released after the investigation and Watson confirming that he would be released "aslong as everything jives." It also shows Watson reading defendant his Miranda rights andstating, "If I don't talk to you, and you don't explain things to me, then I'm forced to arrest you onthe [victim's] complaint." Defendant then executed a written acknowledgment of theMiranda warnings and ultimately provided verbal and written statements.
The video evidence similarly established that defendant made a knowing and voluntarywaiver of his rights when he provided the statement to Watson. The voluntariness of a statementmade after Miranda warnings are given must be determined by considering the totality ofthe circumstances under which it was obtained (see People v Neal, 133 AD3d at 922).Watson's offer of release was conditional and the threat of arrest did not render defendant'sstatement involuntary, inasmuch as the victim's statement provided a sufficient basis for an arrest(see People v Silvagnoli, 151 AD3d at 444; People v Neal, 133 AD3d at 923; People v Brown, 55 AD3d 1370,1370-1371 [2008], lv denied 11 NY3d 895 [2008]). In view of the foregoing, we find thatCounty Court correctly determined that the People established beyond a reasonable doubt thatdefendant was given Miranda warnings that he knowingly waived when he voluntarilygave his statement.
Defendant's claim that County Court erred in admitting an image of a text message that thevictim sent to defendant is not preserved for our review because defendant did not object to itsadmission into evidence (see CPL 470.05 [2]; People v Chappelle, 126 AD3d 1127, 1128 [2015], lvdenied 25 NY3d 1161 [2015]; People v Shuaib, 111 AD3d 1055, 1058 [2013], lv denied24 NY3d 1046 [2014]). Similarly, and as conceded by defendant, his claim that County Courterred in failing to instruct the jury on an agency defense also was not preserved for our review,inasmuch as defendant did not request that such a charge be given (see e.g. People v Stephens, 31 AD3d890, 891-892 [2006], lv denied 7 NY3d 870 [2006]; People v Thomas, 227AD2d 196, 196 [1996], lv denied 88 NY2d 943 [1996]).
Defendant bases his claim that he did not receive the effective assistance of counsel solely oncounsel's failure to request an agency instruction. "An agency defense must be submitted to thejury if any reasonable view of the evidence, considered in the light most favorable to thedefendant, supports the conclusion that the defendant, in selling narcotics, was acting solely onbehalf of the buyer such as to be a mere extension or instrumentality of the buyer" (People v Hunt, 50 AD3d 1246,1247 [2008] [internal quotation marks and citations omitted], lv denied 11 NY3d 789[2008]). However, there is no basis for giving an instruction regarding an agency defense where"there was no evidence, however slight, to support the inference that [the] defendant was acting,in effect, as an extension of the buyer" (People v Wright, 139 AD3d 1094, 1100 [2016] [internal quotationmarks, brackets and citation omitted], lvs denied 28 NY3d 939 [2016], 29 NY3d 1089[2017]; see People v Hunt, 50 AD3d at 1248). In his voluntary statement, defendantadmitted that the victim paid him $60 for the cocaine that he brought to her apartment and sharedwith her and, further, that he possessed the cocaine prior to the time that the victim invited him toher apartment and requested that he bring cocaine. In light of defendant's admissions that hepossessed and sold cocaine, trial counsel cannot be faulted for failing to request an agencydefense instruction (see People vWilliams, 21 NY3d 932, 934 [2013]; People v Wright, 139 AD3d at 1100;People v Hunt, 50 AD3d at 1248). Moreover, our review of the record establishes thatdefendant received meaningful representation from trial counsel, who made appropriate pretrialmotions, conducted thorough cross-examination of witnesses and successfully impeached thevictim's testimony, resulting in defendant being acquitted of three violent felonies (see People v Thompkins, 133 AD3d899, 901 [2015]; People v Chappelle, 126 AD3d at 1129; People v Sieber, 26 AD3d 535,536 [2006], lv denied 6 NY3d 853 [2006]).
Peters, P.J., McCarthy, Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.