| People v Muckey |
| 2018 NY Slip Op 01101 [158 AD3d 954] |
| February 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ronald J. Muckey, Appellant. |
Jay L. Wilber, Public Defender, Binghamton (Andrew Newmark of counsel), forappellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered August 18, 2015, convicting defendant upon his plea of guilty of the crime of rape inthe first degree.
Defendant was charged in an indictment with two counts of predatory sexual assault againsta child and one count of sexual abuse in the first degree after he had sexual intercourse with aseven-year-old female. Prior to trial, his counsel submitted a letter to County Court requesting itto conduct a taint hearing to ascertain if the seven-year-old victim had been unduly influenced byher mother to make the accusations against defendant. County Court denied this request.Thereafter, defendant pleaded guilty to rape in the first degree in satisfaction of the indictmentand also waived his right to appeal, both orally and in writing. He was sentenced, in accordancewith the terms of the plea agreement, to eight years in prison to be followed by 10 years ofpostrelease supervision. Defendant now appeals.
Initially, defendant contends that County Court erred in denying his request for a pretrial tainthearing. Inasmuch as defendant's challenge is evidentiary in nature, it is precluded by his validwaiver of the right to appeal (see e.g.People v Shillabeer, 154 AD3d 1017, 1018 [2017]; People v Johnson, 153 AD3d 1031, 1031 [2017], lv denied30 NY3d 980 [2017]; People v [*2]Hartfield, 151 AD3d 1116, 1118 [2017], lv denied29 NY3d 1127 [2017]; People vCooper, 126 AD3d 1046, 1047 [2015], lv denied 26 NY3d 966 [2015]).Furthermore, although defendant also asserts that his counsel was ineffective due to his failure tosuccessfully persuade County Court to conduct a taint hearing, we do not find on the recordbefore us that defendant was denied meaningful representation (see People v Hall, 147 AD3d1151, 1152-1153 [2017], lv denied 29 NY3d 1080 [2017]; People v Cooper,126 AD3d at 1047-1048). Although there is no " 'express statutory authority for a hearingto determine whether the testimony of [a] child witness[ ] has been tainted by suggestiveinterviewing techniques,' a court nonetheless may—'[u]pon a proper showing' by thedefendant—direct that a pretrial taint hearing be held" (People v Milford, 118 AD3d 1166, 1168 [2014], lv denied23 NY3d 1065 [2014], quoting People vNickel, 14 AD3d 869, 870-871 [2005], lv denied 4 NY3d 834 [2005]). Here,"defendant failed to make a nonspeculative showing of any undue suggestion" (People vNickel, 14 AD3d at 871) and, consequently, County Court did not abuse its discretion indeclining to conduct a taint hearing.
McCarthy, J.P., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.