Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. Tim HENRY, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a plea of guilty of vehicular manslaughter in the first degree (Penal Law § 125.13[3] ). We agree with defendant that his waiver of the right to appeal is invalid because County Court's “ ‘single reference to defendant's right to appeal is insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” ( People v. Allen, 64 A.D.3d 1190, 1191, 882 N.Y.S.2d 783,lv. denied13 N.Y.3d 794, 887 N.Y.S.2d 543, 916 N.E.2d 438;see People v. Said, 105 A.D.3d 1392, 1393, 963 N.Y.S.2d 796,lv. denied21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397). The court's somewhat expanded discussion of the right to appeal on the date of sentencing, after the sentence was pronounced, did not rectify the inadequate colloquy at the time the plea was entered ( see People v. Gil, 109 A.D.3d 484, 484–485, 970 N.Y.S.2d 88).
We nevertheless reject defendant's contention that the court erred in refusing to suppress his statements to the police on the ground that the statements allegedly were made in violation of his right to counsel. The right to counsel attaches, inter alia, “when a person in custody requests to speak to an attorney or when an attorney who is retained to represent the suspect enters the matter under investigation” ( People v. Grice, 100 N.Y.2d 318, 321, 763 N.Y.S.2d 227, 794 N.E.2d 9;see People v. Foster, 72 A.D.3d 1652, 1653, 900 N.Y.S.2d 219,lv. dismissed15 N.Y.3d 750, 906 N.Y.S.2d 822, 933 N.E.2d 221). Here, defendant did not ask to speak to an attorney at any point during the police interrogation. Defendant's statements to the effect that he had an attorney and his questions whether he should have an attorney present were not an unequivocal invocation of the right to counsel ( see People v. Hicks, 69 N.Y.2d 969, 970, 516 N.Y.S.2d 648, 509 N.E.2d 343,rearg. denied70 N.Y.2d 796, 522 N.Y.S.2d 113, 516 N.E.2d 1226;People v. Hall, 53 A.D.3d 1080, 1081–1082, 861 N.Y.S.2d 889,lv. denied 11 N.Y.3d 855, 872 N.Y.S.2d 78, 900 N.E.2d 561;People v. Cotton, 277 A.D.2d 461, 462, 715 N.Y.S.2d 763,lv. denied96 N.Y.2d 757, 725 N.Y.S.2d 283, 748 N.E.2d 1079). Further, defendant failed to “present[ ] evidence establishing that he was in fact represented by counsel at the time of interrogation, as defendant contended” ( People v. Hilts, 19 A.D.3d 1178, 1179, 796 N.Y.S.2d 828). Although defendant indicated that he had a lawyer in connection with his marital separation, we conclude that the lawyer “was not retained ‘in the matter at issue’ ” ( Foster, 72 A.D.3d at 1654, 900 N.Y.S.2d 219, quoting People v. West, 81 N.Y.2d 370, 373–374, 599 N.Y.S.2d 484, 615 N.E.2d 968). Contrary to the further contention of defendant, “the record of the suppression hearing supports the court's determination that the statements at issue were not rendered involuntary by reason of any alleged coercion by the police” ( People v. Kirk, 96 A.D.3d 1354, 1357, 945 N.Y.S.2d 818,lv. denied20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330;see People v. Camacho, 70 A.D.3d 1393, 1393–1394, 894 N.Y.S.2d 680,lv. denied14 N.Y.3d 886, 903 N.Y.S.2d 774, 929 N.E.2d 1009;People v. Martin, 55 A.D.3d 1236, 1237, 864 N.Y.S.2d 582,lv. denied11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446,reconsideration denied12 N.Y.3d 855, 881 N.Y.S.2d 667, 909 N.E.2d 590).
Defendant further contends that the court erred in refusing to suppress certain identification testimony because it was based on an unduly suggestive single-photograph display. We reject that contention. Where, as here, the defendant's identity is not in issue, “ ‘suggestiveness' is not a concern” ( People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924;see People v. Frederick, 196 A.D.2d 791, 792, 602 N.Y.S.2d 107,lv. denied82 N.Y.2d 894, 610 N.Y.S.2d 161, 632 N.E.2d 471;People v. Mati, 178 A.D.2d 556, 556, 577 N.Y.S.2d 464,lv. denied79 N.Y.2d 921, 582 N.Y.S.2d 81, 590 N.E.2d 1209).
Finally, the agreed-upon sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.