| People v Decker |
| 2018 NY Slip Op 01676 [159 AD3d 1190] |
| March 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v MichaelDecker, Appellant. |
Samantha E. Koolen, Albany, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered January 22, 2016, convicting defendant upon his plea of guilty of the crime ofattempted promoting prison contraband in the first degree.
Defendant, an inmate, was charged with promoting prison contraband in the first degree afterhe admitted to a correction officer that he was hiding a weapon between his buttocks. The itemwas discovered shortly thereafter during a strip search. County Court denied defendant's motionto suppress his statement to the correction officer. Defendant pleaded guilty to a reduced felonycharge of attempted promoting prison contraband in the first degree and was sentenced to aprison term of 1
Defendant contends that the circumstances under which his statement was made wascustodial for purposes of Miranda and, therefore, County Court erred in denying hissuppression motion. In a correctional facility, Miranda warnings are necessary where "thecircumstances of the detention and interrogation . . . entail added constraint thatwould lead a prison inmate reasonably to believe that there has been a restriction on that person'sfreedom over and above that of ordinary confinement in a correctional facility" (People vAlls, 83 NY2d 94, 100 [1993]; accord People v Hadfield, 119 AD3d 1224, 1226 [2014], lvdenied 24 NY3d 1002 [2014]). A Miranda warning is not necessary for "relativelybrief, generally public, or otherwise on-the-scene investigatory detentions" that are typically notcustodial (People v Alls, 83 NY2d at [*2]100).
At the suppression hearing, Travis Reynolds, a correction officer, testified that he wasmonitoring inmates as they passed through a metal detector on their way to lunch. Because themetal detector sounded as defendant passed through, Reynolds had defendant step out of line andplace his hands against a nearby wall so that Reynolds could conduct a pat frisk. When nocontraband was found, Reynolds directed defendant to sit in a metal detecting chair locatedapproximately 12 feet from the metal detector and its alarm again indicated the presence ofmetal. Reynolds directed defendant to return to the wall for a second frisk, but first askedwhether defendant "had anything." After initially denying any misconduct, defendant thenadmitted that he had a "scalpel." Reynolds then placed defendant in handcuffs and, during anensuing strip search, a two-inch sharpened piece of metal with a handle made with electrical tapewas discovered. In our view, the interchange between Reynolds and defendant was not custodialbut a routine, "on-the-scene investigatory detention[ ]" (id.; see People v Darrell, 145 AD3d1316, 1318-1319 [2016], lv denied 29 NY3d 1125 [2017]). Accordingly, we findthat County Court properly denied defendant's suppression motion.
Turning to defendant's arguments with regard to his guilty plea, an inmate is guilty ofattempted promoting prison contraband in the first degree when he or she attempts to "knowinglyand unlawfully make[ ], obtain[ ] or possess[ ] any dangerous contraband" (Penal Law§ 205.25 [2]; see Penal Law § 110.00). Defendant claims thatCounty Court failed to discuss the "unlawful" element and did not distinguish his right to a benchtrial as an alternative to a jury trial. These claims are not preserved for our review as the recorddoes not reflect that defendant made a postallocution motion with respect thereto (see People v Williams, 27 NY3d212, 219 [2016]; People v Lopez, 71 NY2d 662, 665-666 [1988]). Absent such amotion, we may review a plea on appeal "[i]n that rare case . . . where thedefendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubtupon the defendant's guilt" (People v Lopez, 71 NY2d at 666). We find, however, thatnone of defendant's statements at the plea colloquy triggered the exception to the preservationrequirement (see People v Williams, 27 NY3d at 214; People v Leflore, 154 AD3d 1164, 1165 [2017]; People v Tole, 119 AD3d 982, 983[2014]; compare People v Gresham,151 AD3d 1175, 1178 [2017]).
Next, defendant argues that he was denied the right to the effective assistance of counselbecause trial counsel failed to file a timely motion to dismiss the indictment based on a grandjury deficiency and failed to request a Singer hearing to challenge the pretrial delay. Asthe record fails to indicate that defendant made an appropriate postallocution motion to withdrawthe plea, these claims have also not been preserved for our review (see People v Terry, 122 AD3d955, 956 [2014]; People vKerwin, 117 AD3d 1097, 1098 [2014]). In any event, we note that "[t]here can be nodenial of effective assistance of trial counsel arising from counsel's failure to make a motion orargument that has little or no chance of success" (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marksand citation omitted]). Here, the record fails to support a conclusion that, if defendant hadtestified before the grand jury, there would have been a different outcome (see People v Beecham, 74 AD3d1216, 1217 [2010], lv denied 15 NY3d 918 [2010]). Similarly, and in the absence ofany claim of prejudice, we are unable to conclude that the one-year preindictment delayconstituted a denial of defendant's due process rights (see People v Alger, 23 AD3d 706, 707 [2005], lv denied 6NY3d 845 [2006]).
Egan Jr., J.P., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.