| People v Morrow |
| 2018 NY Slip Op 08804 [167 AD3d 1516] |
| December 21, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Ryan J. Morrow, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Appeal from a judgment of the Steuben County Court (Marianne Furfure, A.J.), renderedNovember 6, 2014. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree, criminal possession of a weapon in the fourth degree and tampering with physicalevidence (five counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, interalia, murder in the second degree (Penal Law § 125.25 [1]), defendant contends thatCounty Court erred in refusing to suppress statements that he made to police investigators asinvoluntarily made. We reject that contention. " 'The voluntariness of a confession is tobe determined by examining the totality of the circumstances surrounding theconfession' " (People vDeitz, 148 AD3d 1653, 1653 [4th Dept 2017], lv denied 29 NY3d 1125 [2017];see People v Buchanan, 136 AD3d1293, 1293 [4th Dept 2016], lv denied 27 NY3d 1129 [2016]). Here, the policeinvestigators testified at the suppression hearing that defendant agreed to accompany them to thepolice station and was advised of his Miranda rights during the ride to the station.Thereafter, defendant agreed to speak to the investigators (see Deitz, 148 AD3d at1653-1654), and was not threatened or coerced to waive his Miranda rights (seeBuchanan, 136 AD3d at 1293-1294). The court credited the police investigators' testimony,and we afford deference to the court's resolution of issues of credibility (see People v Dogan, 154 AD3d1314, 1315 [4th Dept 2017], lv denied 30 NY3d 1115 [2018]; Buchanan, 136AD3d at 1294). Moreover, we note that the video recordings of defendant's conversations withthe police investigators, which were received in evidence at the hearing, are consistent with theirtestimony. Contrary to defendant's contention, his statements were not rendered involuntary bypolice deception because the deception "did not create a substantial risk that defendant mightfalsely incriminate himself" (Deitz, 148 AD3d at 1654 [internal quotation marksomitted]; see People vClyburn-Dawson, 128 AD3d 1350, 1351 [4th Dept 2015], lv denied 26 NY3d966 [2015]). In light of the totality of the circumstances, the People proved beyond a reasonabledoubt that the challenged statements "were not products of coercion but rather were the result ofa free and unconstrained choice by defendant" (Buchanan, 136 AD3d at 1294 [internalquotation marks omitted]; see People vThomas, 22 NY3d 629, 641 [2014]).
Defendant failed to preserve for our review his contention that his plea was not knowingly,intelligently, or voluntarily entered inasmuch as he did not move to withdraw his guilty plea orvacate the judgment of conviction (seePeople v Sheppard, 149 AD3d 1569, 1569 [4th Dept 2017], lv denied 29 NY3d1133 [2017]; People v Jones, 118AD3d 1354, 1354 [4th Dept 2014], lv denied 24 NY3d 961 [2014]). Contrary to hiscontention, this case does not fall into the rare exception to the preservation doctrine inasmuch asnothing in the plea colloquy "casts significant doubt upon the defendant's guilt or otherwise callsinto question the voluntariness of the plea" (People v Lopez, 71 NY2d 662, 666 [1988];see Sheppard, 149 AD3d at 1569).
Defendant also failed to preserve for our review his challenge to the adequacy of thepresentence report (see People vJones, 114 AD3d 1239, 1242 [4th Dept 2014], lv denied 23 NY3d 1038 [2014],lv denied 25 NY3d 1166 [2015]; People v Hayhurst, 108 AD3d 1233, 1234 [4th Dept 2013]). Wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [3] [c]).
The sentence is not unduly harsh or severe. We note, however, that the certificate ofconviction and uniform sentence and commitment sheet incorrectly reflect that, under count twoof the indictment, defendant was convicted of tampering with physical evidence under Penal Law§ 215.40 (1). Therefore, those documents must be amended to reflect that defendantwas convicted under Penal Law § 215.40 (2) (see People v Gathers, 106 AD3d 1333, 1334 [3d Dept 2013], lvdenied 21 NY3d 1073 [2013]; seealso People v Green, 132 AD3d 1268, 1269 [4th Dept 2015], lv denied 27 NY3d1069 [2016], denied reconsideration 28 NY3d 930 [2016]). Present—Whalen, P.J.,Carni, Curran, Troutman and Winslow, JJ.