| People v Call |
| 2018 NY Slip Op 04750 [162 AD3d 1063] |
| June 27, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v George Call, Appellant. |
Carol Kahn, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (StephenGreller, J.), rendered December 14, 2015, convicting him of rape in the second degree (twocounts), upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppresshis statements to law enforcement officers.
Ordered that the judgment is affirmed.
The defendant's argument that statements he made before and after the administration ofMiranda warnings (see Miranda v Arizona, 384 US 436 [1966]) should have beensuppressed as part of a "single continuous chain of events" in which he was subjected tocustodial interrogation (People vPaulman, 5 NY3d 122, 130 [2005] [internal quotation marks omitted]; see People vChapple, 38 NY2d 112, 115 [1975]), is without merit. Even if the defendant was subjected toa period of custodial interrogation or its functional equivalent prior to the administration ofMiranda warnings (see People v Ferro, 63 NY2d 316, 322-323 [1984]), he madeno inculpatory statement, or any statement relating to his conduct in connection with the crimeunder investigation, until after such warnings had been properly given and his Mirandarights were effectively waived (seePeople v White, 40 AD3d 662, 662 [2007], affd 10 NY3d 286 [2008];People v Prater, 258 AD2d 600, 601 [1999]). "In the absence of any such pre-Mirandastatement, there was no need to determine whether the pre- and post-Mirandasessions were part of a 'single continuous chain of events' " (People v White,40 AD3d at 663, quoting People v Paulman, 5 NY3d at 130; see People vChapple, 38 NY2d at 115). Nor was there evidence that the length or conditions of thedefendant's pre-interrogation detention affected the voluntariness of his [*2]subsequent Miranda waiver (see People v Anderson,42 NY2d 35, 39-41 [1977]; People v White, 40 AD3d at 663). Accordingly, that branchof the defendant's omnibus motion which was to suppress his statements to law enforcementofficers was properly denied.
In addition, we agree with the County Court's determination to limit the defendant'scross-examination of a police officer at the Huntley hearing (People v Huntley, 15NY2d 72 [1965]; see People vMcKenzie, 148 AD3d 936, 937 [2017]; People v Amaya, 103 AD3d 907, 908 [2013]). The court onlylimited the cross-examination after defense counsel asked the officer why his partner made acertain remark during the defendant's digitally recorded interview. Since this question called forspeculation, the People's objection thereto was properly sustained (see People v Bhagwandin, 119 AD3d810, 811 [2014]; People vFrancisco, 44 AD3d 870, 870 [2007]; People v Barney, 277 AD2d 460, 460[2000]).
Insofar as the defendant argues that the County Court should have directed him to submit to apsychiatric examination before accepting his plea of guilty, the argument is not preserved forappellate review since the defendant failed to raise the issue at a time when it might have beenremedied (see CPL 470.05 [2]; People v Carbone, 159 AD2d 511, 511 [1990]). Inany event, the colloquy between the defendant and the court at the plea proceeding did not reveala reasonable ground to believe that the defendant lacked the capacity to understand theproceeding against him or to assist in his own defense (see People v Keiser, 100 AD3d 927, 929 [2012]; People v Ramirez, 29 AD3d 1022,1022 [2006]; People v Rowley, 222 AD2d 718, 718 [1995]).
Review of the defendant's contention that the indictment contained duplicitous counts wasforfeited by his plea of guilty (see People v Hansen, 95 NY2d 227, 230 [2000];People v Beattie, 80 NY2d 840, 842 [1992]; People v Shand, 105 AD3d 777, 777 [2013]; People v Bracewell, 26 AD3d 812,812 [2006]; People v Aiello, 153 AD2d 988, 990 [1989]; People v Caban, 129AD2d 721, 721 [1987]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83[1982]).
To the extent the defendant argues that the County Court improperly denied his motion forresentencing, this contention is not properly before this Court since the order determining thatmotion was issued after the judgment of conviction and cannot be reviewed on this appeal.Dillon, J.P., Chambers, Hinds-Radix and Christopher, JJ., concur.