| People v Woods |
| 2018 NY Slip Op 07975 [166 AD3d 1298] |
| November 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Aundreau Woods, Appellant. |
Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Albany County(Lynch, J.), rendered September 30, 2015, convicting defendant upon his plea of guiltyof the crimes of attempted assault in the first degree, assault in the second degree andendangering the welfare of a child.
Defendant was charged in a three-count indictment with attempted assault in the firstdegree, assault in the second degree and endangering the welfare of a child based uponan incident in December 2014 in which defendant allegedly struck the victim, the motherof his six-year-old child, multiple times with a crowbar, hitting her in the head, leftshoulder, left arm and left hand, causing, among other injuries, lacerations to her headand left hand, a skull fracture, a fractured finger and additional bruising and swelling.The child was present at the residence where the assault occurred and was within earshotof the incident. Defendant subsequently filed an omnibus motion seeking, among otherthings, suppression of certain statements that he made to a Child Protective Services(hereinafter CPS) caseworker. Following a hearing, County Court denied defendant'smotion to suppress the statements. Defendant subsequently pleaded guilty to all threecounts as charged in the indictment. County Court thereafter sentenced him to concurrentterms of 15 years in prison, to be followed by five years of postrelease supervision, onthe attempted assault in the first degree conviction, seven years in prison, to be followedby three years of postrelease supervision, on the assault in the second degree convictionand one year in jail for the endangering the welfare of a child conviction. Defendant nowappeals.
[*2] We reject defendant's contentionthat County Court erred by denying his motion to suppress certain statements that hemade to a CPS caseworker. Specifically, defendant contends that the CPS caseworkerthat interviewed him at the Albany County Correctional Facility on December 30, 2014was acting as an agent of the District Attorney's office and, therefore, his indelible rightto counsel was violated when she questioned him outside the presence of counsel. Wedisagree. Although there is no question that defendant's indelible right to counsel hadattached at the time he was interviewed by the CPS caseworker, the caseworker did notinterview defendant in a law enforcement capacity. The caseworker's testimony revealedthat she interviewed defendant as the result of multiple hotline reports that had beenreceived regarding the December 2014 incident. She testified unequivocally that she didnot collaborate with law enforcement in investigating the alleged incident, she was notinterviewing defendant at the behest of either the police or the District Attorney's office,and she did not notify either entity of her intent to conduct said interview. Moreover, nomembers of law enforcement were present during the interview.[FN*] Accordingly, under the circumstances,we find that defendant's statements to the CPS caseworker were voluntary as they werenot made to any "public servant engaged in law enforcement activity or to one acting atthe direction or in cooperation with law enforcement" (People v Cordato, 85 AD3d1304, 1310 [2011], lv denied 17 NY3d 815 [2011]; see CPL 60.45[2] [b]; People v Rodriguez,135 AD3d 1181, 1184-1185 [2016], lv denied 28 NY3d 936 [2016]; People v Texidor, 71 AD3d1190, 1191 [2010], lv denied 14 NY3d 893 [2010]; compare People v Wilhelm, 34AD3d 40, 44 [2006]; People v Greene, 306 AD2d 639, 641 [2003], lvdenied 100 NY2d 594 [2003]); thus, defendant's right to counsel was not violated asa result of the interview.
Defendant's further contention that he was denied the effective assistance of counselby his initial defense counsel is unpreserved for appellate review as the record fails todisclose that he made an appropriate postallocution motion to withdraw his plea, despitehaving had an adequate amount of time to do so (see CPL 220.60 [3]; People v Williams, 27 NY3d212, 214 [2016]; People vDecker, 159 AD3d 1190, 1192 [2018], lv denied 31 NY3d 1116 [2018];People v Schreiner, 140AD3d 1399, 1399 [2016]; People v Newman, 99 AD3d 1107, 1108 [2012]). As fordefendant's claim that his sentence is harsh and excessive, given defendant's criminalhistory and the senseless and vicious nature of the subject assault, we discern no abuse ofdiscretion or extraordinary circumstances that warrant a reduction of the sentence in theinterest of justice (see CPL 470.15 [3] [c]; [6] [b]; People v Brabham, 126 AD3d1040, 1044 [2015], lv denied 25 NY3d 1160 [2015]; People v Gray, 47 AD3d1068, 1068 [2008], lv denied 10 NY3d 863 [2008]).
Clark, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The CPS caseworkerwas accompanied by a fellow CPS employee who, other than observing defendant'sinterview, did not ask any questions or otherwise participate in same.