The People, Respondent,v.Travis Augustine, Appellant.BriefN.Y.Apr 30, 2013To Be Argued By: Hannah E. C. Moore Time: 20 Minutes COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- TRAVIS AUGUSTINE, Defendant-Appellant. RESPONDENT'S BRIEF Hannah E.C. Moore, Esq. HON. TERRY J. WILHELM Greene County District Attorney Attorney for Respondent 411 Main Street Catskill, New York 12414 Tel. (518) 719-3590 Fax. (518) 719-3792 New York Prosecutors Training Institute, Inc. 107 Columbia Street Albany, NY 12210 Tel. (518) 432-1100 Fax. (518) 432-1180 Of counsel Date completed: October 19, 2012 RULE SOO.13(a) RELATED LITIGATION STATEMENT As of October 19, 2012, there are no other criminal prosecutions against Travis Augustine pending in Greene County related to the case before this Court, and the Greene County District Attorney's Office is not aware of any other, related litigation. TABLE OF CONTENTS RESPONDENT'S BRIEF TABLE OF CASES AND AUTHORlTIES ............ .................... ....... .. ...... ............. iv STATEMENT .................................. .. ................. ................. .. ...... .... ......... ................ 1 QUESTIONS PRESENTED .......... ... .... ................. ..... ..... ... ....................................... 2 THE FACTS ......................................................................... ... ................... ............... .4 INTRODUCTION ..... ... ... ........ ........................ .. .. ... .. ..... ....... ..... ......... ..... ..... .... 4 THE HUNTLEYHEARING ................ ................ .. ........................ ... .. ..... ........ . 6 THE TRlAL ..................................................................................... .. ............. 17 THE SENTENCE ........................ ........ ... ........................................................ 32 THE APPELLATE DIVISION DECISION ...... .......... ... ..... ...... .................... . 32 ARGUMENT POINT ONE THE APPELLATE DIVISION PROPERLY AFFIRMED THE HEARlNG COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS STATEMENTS HE MADE TO THE POLICE ON JULY 27 AND 29, 2008, BECAUSE HE WAS IN CUSTODY ON AN UNRELATED MA TIER BUT WAS NOT REPRESENTED BY COUNSEL AND THEREFORE COULD VALIDLY WAIVE HIS RlGHT TO COUNSEL IN THE ABSENCE OF COUNSEL. ..................... .. .. ........ .. ...... 34 ii POINT TWO DEFENDANT'S CLAIM THAT HIS JULY 27, 2008, STATEMENT TO POLICE SHOULD HAVE BEEN SUPPRESSED BECAUSE HE WAS NOT MIRANDIZED IS UNPRESERVED, AND, IN ANY EVENT, SINCE NO MIRANDA WARNING WAS REQUIRED, THE HEARING COURT PROPERLY DENIED DEFENDNAT'S MOTION TO SUPPRESS THE STATEMENT (RESPONDING TO APPELLANT'S POINT III) .......................... .. .............................................. 52 POINT THREE DEFENDANT'S GUILT OF AGGRAVATED CRUELTY TO ANIMALS WAS PROVEN BEYOND A REASONABLE DOUBT AND THIS UNPRESERVED CLAIM WAS PROPERLY REJECTED BY THE APPELLATE DIVISION (RESPONDING TO APPELLANT'S POINT II) ............ .. .................. ... ...... 63 POINT FOUR AS THE APPELLATE DIVISION FOUND, THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST FOR THE ASSIGNMENT OF NEW COUNSEL WAS A PROPER EXERCISE OF DISCRETION .............................................. ....................... 71 CONCLUSION ............ ......................................... .. .... .. ........................................... 81 iii TABLE OF CASES AND AUTHORITIES CASE LAW FEDERAL CASES Garcia v Rivera, 2007 US Dist LEXIS 59722; 2007 WL 2325928 (SDNY August 16, 2007) ............................. 69 Gideon v Wainwright, 373 US 335 (1963) .............. ....... ....... ......... ............ ....... ...... 72 Miranda v Arizona, 384 US 436 (1966) ........................................... ............... passim NEW YORK STATE CASES Orens v Novello, 99 NY2d 180 (2002) ....... ..... ....... ......... ................. ............ .. .. ....... 66 People vAlls, 83 NY2d 94 (1993) .............................................................. .. ..... 53,54 People v Baldi, 54 NY2d 137 (1981) ....................................................................... 80 People v Beekman, 193 AD2d 842 (3d Dept 1993) ...... ......... .................................. 40 People v Bleakley, 69 NY2d 490 (1987) ........ .............. ........ ......... .. .. ...................... 65 People v Boateng, 67 AD3d 505 (1st Dept 2009) ........................ .. ......................... 70 People v Borukhova, 89 AD3d 194 (2d Dept 2011) ....... ....... ...... ........... ....... .... ..... .43 People v Bridges, 226 AD2d 471 (2d Dept 1996) ................................................... 39 People v Burdo, 91 NY2d 146 (1997) .............................. .. ......................... 36, 41, 43 People v Cabey, 85 NY2d 417 (1995) ..................................................................... 65 People v Carranza, 8 NY3d 729 (2004) ........... ................. ............ .. .. .... ......... ........ .46 People v Cawley, 76 NY2d 331 (1990) ....... ..... ........... ........ .. .. ........................ . .41,44 iv People v Conway, 6 NY3d 869 (2006) ........ ........ ...... ... ........ .. ....... ......... .. ............... 65 People v Crimmins, 36 NY2d 230 (1975) .......... .... ... ... .... ........ ... .... ........ ..... ........ .. .49 People v Danielson, 9 NY3d 342 (2007) ......... ....... ........................ .. ....... ............ .... 65 People v DeBour, 40 NY2d 210 (1976) ..... ...... ..... ... ............ ... ... ...... ..... ................... 56 People v Degirogio, 36 AD3d 1007 (3d Dept 2007) ..... ..... .... ..... ... .... .... ......... ........ 69 People v Doll, 948 NYS2d 471 (4th Dept July 6, 2012) .. .. ... .................... .... ... ....... 60 People v Edwards , 946 NYS2d 269 (3d Dept June 7, 20120) .... .. ...................... .... 70 People v Garcia, 29 AD3d 255 (1st Dept 2006) ................... ........... ... .. ............ 67-70 People v Garcia, 3 Mise 3d 699 (Sup Ct NY Co 2004) ...... ... ............. .. ... .. ...... ....... 69 People v Gray, 86 NY2d 10 (1995) ..... .... .... .... .... ........ .................... ..... .. ... ... ... ........ 64 People v Grice, 100 NY2d 318 (2003) .......... .. ........ ... ......... ... .. ............. ..... . 36,41,43 People v Hawkins, 11 NY3d 484 (2008) .... ... ........ .................. ....... .... ................ ... .. 64 People v Hernandez, 214 AD2d 485 (1 st Dept 1995) .. ....... .... ...... .... ................... .. .40 People v Hines , 97 NY2d 56 (2001) ..... ... ..... .......... ........ .. .... .... .. ................. ............ 64 People v Hobson, 39 NY2d 479 (1976) ........ ... ........ .. ....... ......... .... ........... ... ..... .41,43 People v Huntley, 15 NY2d 72 (1965) ................ ....... ........... ..... .... ..... ..... .. ...... passim People v Kazmarick, 52 NY2d 322 (1981) ................. ..... ........ ..... ................ ........... 36 People v Knowles, 184 Mise 2d 474 (Co Ct Rensselaer Co May 15,2000) ........ ... 66 People v Koch, 299 NY 378 (1949) ............ ................ .. .... .. ... .. ...... .............. 48,56-57 People v Krom, 61 NY2d 187 (1984) ... ... .... .. ....... ....... ... ... ....... ... ..... ..... 48,56-58, 60 v People v Linares, 2 NY3d 507 (2004) .......................... .. ........ ..... ..... ...... .... .. ........... 73 People v Lopez, 16 NY3d 375 (2011) ................ .. ............................ 36,41-43,46,48 People v Loughlin, 66 NY2d 633 (1985) ...... .. ......................................................... 65 People v Malizia, 62 NY2d 775 (1984) ......... .......... ............. .... .. ....................... ...... 65 People v Medina, 44 NY2d 199 (1978) ......... .... ........ ........ .............. ............... ... 73, 79 People v Mitchell, 2 NY3d 272 (2004) ........................ .... ........ .. ..... .. ........ .. ............. 35 People v Passino, 53 AD3d 204 (3d Dept 2008) ............ ............... ................. .. ....... 53 People v Patterson, 39 NY2d 288 (1976) ................................................................ 64 People v Persons, 181 Mise 2d 189 (Co Ct Nassau Co June 18, 1999) ............. ... .. 39 People v Porto, 16 NY3d (2010) ................. .. ......................................... 73-74, 79-80 People v Roberts, 236 AD2d 848 (4th Dept 1997) .............................. ................... .44 People v Robles, 72 n Y2d 689 (1988) .................. ... ................................................ 36 People v Rogers, 48 NY2d 167 (1979) ................................. .. ... ......... ............... 36, 41 People v Romero, 7 NY3d 633 (2006) ............... ......... .. ..... ............. ..... ...... .............. 65 People v Rosa, 65 NY2d 380 (1985) ................................................................. 37, 40 People v Ruff, 81 NY2d 330 (2993) ...................... .. ..... .......... ...... ............ .... ..... ....... 36 People v Santi, 3 NY3d 234 (2004) ................. ............ .............. .............. .... ... ......... 65 People v Sides, 75 NY2d 822 (1990) ................................................... .. .... .. ............ 73 People v Smith, 92 NY2d 516 (1998) ................. .. ................................................... 72 People v Smith, 4 NY3d 806 (2005) .................. .... ..................................... ... .......... 64 vi People v Smith, 18 NY3d 588 (2012) .................................................................. 4-75 People v Steward, 88 NY2d 496 (1996) ........................................................... 42- 43 People v West, 81 NY2d 370 (1993) ...... ...... ...... .. ............................................ .40, 42 People v White, 10 NY3d 286 (2008) ..................................... ................................. 53 People v Williams, 13 Misc 3d 886 (Sup Ct Kings Co Sept 20, 2006) .................. .43 People v Zalevsky, 82 AD3d 1136 (2d Dept 2011) ................................................. 61 Rosner v Metro proper & Liab Ins Co, 96 NY2d 475 (2001) ................................. 66 STATUTES AND RULES Agriculture and Markets Law § 353-a[l] ....... ..... ....... ... .... ... ...... 1, 5-6, 63, 65-67, 69 Criminal Procedure Law § 120.10 ........................................................................... 38 Criminal Procedure Law § 120.90 .......................................................................... .38 Criminal Procedure Law § 140.20 .................. ............... ..... .................................. ... 38 Criminal Procedure Law § 210.30 ............. .. ............................................................ 64 Criminal Procedure Law § 410.40 ........................................................................... 38 Criminal Procedure Law § 410.60 .......... .................. ........ .. ... ........ .. ......... ...... .. ....... 38 Criminal Procedure Law § 410.70 ........................................................................... 38 Criminal Procedure Law § 470.05 ............................................................... .. .......... 64 New York Court Rule § 200.26 ............................................................................... 38 NY Const, Art I, § 6 ................................................................................................. 72 Penal Law § 125.25 ....................... ........ .................................................................. 1, 5 vii Penal Law § 165.45 ......... ............... ....... ....... ........................... ............................... 1, 5 US Const, 6th Am .................................................................................................... 72 viii STATEMENT By permission of the Honorable Theodore T. Jones, Associate Judge of this Court, granted June 1, 2012, defendant appeals from an order of the Appellate Division, Third Department, entered on November 10, 2011 (89 AD3d 1238), unanimously affirming a judgment of the County Court, Greene County (Pulver, l), rendered June 2, 2009, convicting defendant, after a jury trial, of Murder in the Second Degree (Penal Law § 125.25), Aggravated Cruelty to Animals (Agriculture and Markets Law § 353-a), and two counts of Criminal Possession of Stolen Property in the Fourth Degree (Penal Law §§ 165.45, ). Defendant was sentenced to an indeterminate term of imprisonment of from 25 years to life for the murder conviction, two years for the aggravated animal cruelty conviction, and an indeterminate term of imprisonment of from two to four years for each criminal possession of stolen property conviction. All sentences were imposed to run consecutively. Defendant is currently incarcerated pursuant to this judgment. 1 QUESTIONS PRESENTED 1. Did the hearing court properly credit the testimony ofthe People's witnesses at the Huntley hearing to conclude that defendant was not represented by counsel on the charge for which he was held in custody, and thus was free to waive his right to counsel without an attorney being present when he was interviewed by the police on July 27 and 29, 2008? Answer of the court below: Yes. The hearing court found that the defendant was not represented by counsel on the custodial charge when interviewed on those occasions, and thus denied defendant's motion to suppress those statements. The Appellate Division affirmed 2. Were Miranda warnings required when the police interviewed defendant on July 27, 2008, in response to a missing person's report and when defendant was not a suspect? Answer of the court below: No. Although the court did not make conclusions of law specifically to this issue (presumably because defendant did not raise it below), it did fmd that no Miranda warnings were read when the police interviewed defendant in response to a missing person's report because defendant was not a suspect and was not being interrogated. The court also found that defendant's statements were voluntary, and denied his motion to suppress. The Appellate Division affirmed, finding that the police were not required to Mirandize defendant prior to his July 27,2008, statement. 3. Was defendant's conviction for aggravated cruelty to animals supported by legally sufficient evidence? Answer of the court below: The issue was never raised by defendant and therefore never addressed by the trial court. The Appellate Division found the argument unpreserved, and, in its weight of the evidence review, found that the People proved "aggravated cruelty" as required by the statute. 4. Was the trial court required to question defendant directly in response to his conclusory letter to the court asking that new counsel be appointed one week before the beginning oftria1? 2 Answer of the court: No. The court addressed both the prosecutor and defense counsel, defendant agreed with the court that it would be better for him not to speak for fear of prejudicing his case, and defendant never raised the issue again. The Appellate Division affirmed. 3 THE FACTS Introduction On July 28, 2008, Martha Conners's son, Matthew Conners, found her body buried beneath her dog Savannah's body in a grave near Martha's secluded property in Catskill, New York.! The autopsy revealed that Martha had been shot once in the head. The necropsy showed that Savannah had been shot five times in the head. The projectile removed from Martha, and the four projectiles that were removed from Savannah were consistent with projectiles fired from the .22 Winchester bolt action rifle found inside Martha's camper. Also inside her camper, police found a shell casing that had been fired by that .22 Winchester rifle. Blood that matched Martha's DNA was discovered in multiple locations inside the camper as well. On July 3, 2008, Martha worked a full day at Price Chopper, her employer for the past four and-a-half years. Despite being scheduled to work on six subsequent days, she never again showed up for work, nor contacted her employer. Martha's friends and family were suddenly unable to reach her on her cell phone. Defendant, Travis Augustine, had lived with Martha for approximately one to two months prior to her murder. On July 6, 2008, defendant called his half- ! For the sake of clarity, when individuals have the same last name, respondent will refer to those individuals by their first name. 4 brother, Franklyn Smith, and asked him how to dispose of a body. Mr. Smith told defendant to dig a hole, put the body in it, and find an animal to bury on top of the body. When his half-brother later asked him why he wanted to know, defendant admitted that he shot a woman in the face. On or about July 18, 2008, defendant was arrested for driving with a suspended license. He had spent the previous week and-a-half driving in Martha's distinctive bright yellow truck and using her debit card. While in custody, it was discovered that he had an outstanding bench warrant from Cairo Town Court for a probation violation, as well as one from the Village of Catskill for failure to pay a fine. Defendant was transported to the Greene County Jail and was incarcerated there on unrelated charges when Matthew discovered his mother's body. By Indictment Number 08-138, dated September 18, 2008, the Greene County Grand Jury charged defendant with Murder in the Second Degree (Penal Law § 125.25 [I]), Aggravated Cruelty to Animals (Agriculture and Markets Law § 353-a), and two counts of Criminal Possession of Stolen Property in the Fourth Degree (penal Law §§ 165.45,) (A. 10-1l)? Thereafter, the People, with permission of the court, filed an amended indictment which changed the law in 2Numerical references preceded by "A." are to Defendant-Appellant's appendix. Those preceded by "RA." are to Respondent's supplementary appendix. 5 Count 2 of the Indictment from "Section 353-a" of the Agriculture and Markets law to "Section 353-a(1)" (A. 14-16). Defendant moved for various forms of pre-trial relief, including dismissal of the indictment for insufficient evidence, and suppression of two of his statements to the police. After a two-day Huntley hearing conducted on January 22 and 30, 2009, the motion to suppress was denied. Defendant proceeded to trial and, on May 1,2009, the jury unanimously convicted him as charged. On June 2, 2009, he was sentenced as described above. The Appellate Division, Third Department, unanimously affirmed his conviction. Defendant now seeks reversal of his conviction, and claims that the trial court erred in denying his motion to suppress statements he made to police; that the court denied his right to counsel by rejecting his pre-trial request for the substitution of counsel; and that evidence was insufficient to sustain his conviction for Aggravated Cruelty Against Animals. The Huntlev Hearing In an omnibus motion dated October 30, 2008, defendant moved in pertinent part, to suppress two of the statements that he made to the police. According to defendant, he was represented by counsel on the probation violation matter when he made the statements, and could not be questioned (RA. 11). The People denied that the statements were "in violation of any of defendant' s rights," but did not 6 oppose a Huntley hearing (RA. 18). On January 7, 2009, the trial court (Pulver, J.) conducted a Huntley hearing. The People's Case In the early morning hours of July 18, 2008, New York State Trooper David Lane arrested defendant near Cobleskill and Sharon Springs, pursuant to two outstanding bench warrants - - one out of the Town of Cairo Court for a violation of probation, and one out of the Village of Catskill for failure to pay a fine (RA. 41-44,149,160). First, at approximately 2:00 a.m., they went to the Town Of Cairo Court (RA. 42-43,160). The only people present were defendant, Hon. Thomas W. Baldwin, Trooper Lane, and Trooper Rosenblatt, who assisted with defendant's transport (RA. 43). Cairo Town Court Proceedings Defendant appeared on the probation violation before Town Justice Baldwin, who had been Town Justice for the Town of Cairo for the past 27 years, and also served as the Executive Director for the New York State Magistrate's Association (RA. 158-160).3 Although the court informed defendant that he had a 3 The "violation of probation" document charged that defendant, "having violated the conditions imposed on April 22, 2008, as a result of an A misdemeanor conviction," failed to comply with a special condition of his probation in that he "failed to comply with substance abuse treatment at Town County Recovery Services and was discharged due to lack or response," and "failed to comply with probation condition ... in that he failed to appear for a scheduled appointment on May 22, 2007, and has not contacted this officer ... and his whereabouts are unknown" (A. 51). 7 right to counsel, and asked defendant whether he wanted an attorney, defendant replied that he "didn't know that he needed one" (RA. 166-167). He "didn't know whether he wanted [an attorney] or not" (RA. 160). Defendant never requested an attorney (RA. 163). In conjunction with the proceeding on July 18th, Town Justice Baldwin filled in, by hand, a form document titled "Arraignment Memorandum - - General" (A. 48; RA. 160). After the typed phrase "Counsel assigned," the form contains a blank line as well as boxes delineated "Yes" and "No." On the blank line, Town Justice Baldwin wrote "Greene Co. Public Defenders Office," and marked an "X" in the "Yes" box. He explained, however, that in doing so it was both his practice and intent to refer defendants to the Public Defender's office for intake to determine their eligibility for representation by the Greene County Public Defender's Office. The determination as to whether a person was eligible was for the Public Defender's Office to decide, and there have been occasions where defendants have been determined, after intake, to be ineligible for representation by the Public Defender's Office (RA. 161-162). Since defendant did not know whether he wanted a lawyer or not, the court advised defendant that he "was going to set bail, and he could decide" if he wanted a lawyer (RA. 160). The court set bail at $2,500 cash/$5,000 bond (RA. 43, 162). The case was adjourned to July 22, but there was no appearance on that date (RA. 162). Defendant next appeared in 8 court, with counsel from the Greene County Public Defender's Office, on July 29, 2008 (RA. 162,169-170).4 Catskill Village Court Proceedings After the proceeding in Cairo Town Court, the troopers took defendant to the Village of Catskill Police Department to address the other warrant (RA. 43-44). Defendant appeared in the Village of Catskill Court, before Hon. Charles A. Adsit, Village Justice, in the early morning hours of July 18, 2008. Defendant had failed to pay a fine and a surcharge on a previous case in which he pled guilty to Harassment in the Second Degree (RA. 149-150). Defendant appeared before Justice Adsit for one minute and forty-one seconds. The proceeding was recorded (RA. 151).5 There was "no conversation at all relating to an attorney" (RA. 153). The court merely committed defendant to jail for 15 days, in accordance with the sentence previously imposed, which called for defendant to pay $200 or serve 15 days jail (RA. 152). 4 Later in July, very late in the evening of July 28, 2008, or early on July 29, 2008, Greene County District Attorney Terry Wilhelm called Town Justice Baldwin and asked whether defendant had requested an attorney during the July 18th appearance. Town Justice Baldwin replied that when he asked defendant ifhe wanted an attorney, defendant "didn't think he needed an attorney - - or wasn't sure that he wanted an attorney" (RA. 162). 5 The transcript of that recording was read into the record at the hearing (RA. 152-153). 9 Investigation and July 27, 2008 Statement On July 27th, nine days after arresting defendant, Trooper Lane received a telephone call from Matthew Conners, who reported that his mother, Martha Conners, who had possibly been living in the Sandman Motel, had been missing for about three weeks (RA. 44-45). Trooper Lane assigned the investigation to Trooper Gregory Lischak, who immediately began interviewing people who lived at the motel, as well as any other of Martha's friends or family members that he was able to locate (RA. 46, 56-60). Because he was unable to learn anything about Martha's whereabouts for the past three weeks, Trooper Lischak re-contacted Matthew, who mentioned a few of his mother's acquaintances, including defendant (RA. 59). Matthew also informed Trooper Lischak that Martha worked at a Price Chopper in Catskill, so Trooper Lischak went there next, and interviewed several more people. Trooper Lischak' s sense of urgency grew when he learned that no one there had seen Martha for a while (RA. 60). Defendant's name was mentioned to Trooper Lischak as someone who accompanied Martha on several occasions to look for scrap metal. When he asked Trooper Lane if he had ever heard the name, Trooper Lane informed Trooper Lischak that he had recently arrested defendant on a probation warrant, and he was lodged at the Greene County Jail (RA. 61-62). 10 To assist Trooper Lischak, Trooper Lane contacted the Greene County Jail to arrange for Trooper Lischak to interview defendant (RA. 47-48). After receiving a call from a state trooper regarding assistance with a missing person investigation, Correction Officer Steven Ross told the trooper that as long as defendant consented and signed a form, the troopers could speak with him. Officer Ross told defendant that "the troopers were here, they ... want to speak to you about a missing person, you're not under arrest at this time, and if you would like to talk to 'em, sign it, if you don't want to talk to 'em, don't sign it" (RA. 173-175). Defendant agreed to speak with the Troopers (RA. 174). After Trooper Lane received a return phone call in which he was informed that defendant had consented to be interviewed, Trooper Lischak went to the Greene County Jail to interview defendant (RA. 48). Troopers Lane and Lischak did not discuss together beforehand whether defendant was represented by counsel. Trooper Lane did not believe that defendant was represented by counsel when Trooper Lischak went to interview him, in part because Greene County Jail officials permitted Trooper Lischak to conduct the interview, and would not have done so had defendant been represented by counsel, but also because Trooper Lane had personal experience with defendant from having "dealt with [him] on previous incidents" (RA. 51-52). 11 At about 10:30 p.m., on the evening of July 27, 2008, Trooper Lischak spoke to defendant at the Greene County Jail (RA. 19, 63, 66). Once Trooper Lischak had also signed and dated the consent form, he was able to speak with defendant in a secure room (RA. 63-64, 81).6 Trooper Lischak met with defendant for less than an hour, and the meeting was over before 11 :30 p.m. He was unaware of whether the room was equipped to record interviews, explaining, "I was just there to find out ifhe had any information regarding Martha." Trooper Lischak did not know whether defendant was in jail on a criminal offense, and did not inform defendant of any Miranda rights or that he was free to leave the interview at any time, nor did he ask whether defendant was represented by counsel. The issue of defendant's representation by counsel was unimportant to Trooper Lischak because "[i]t made no bearing on what [he] need to ask him," which was "about a missing person" (RA. 68, 83-86). Defendant answered every question asked of him, did not refuse to answer any questions, and "was cooperating ... freely." Defendant never asked to leave during the interview, nor did he ask to speak with anyone else. Defendant was not a suspect at that time (RA. 87, 90). Defendant gave Trooper Lischak "pretty good leads about the possibility of Martha being in Niagara" (RA. 69). 6 The "InmatelPolice Agency" request form containing defendant's signature and Trooper Lischak's signature was admitted into evidence (RA. 30-31). 12 Following the interview, Trooper Lischak typed up a synopsIs of the interview from his notes, and immediately began following up on the leads provided by defendant (RA. 66, 68-69). At the end of his shift, Trooper Lischak turned the missing person investigation over to Trooper Charles Francis (RA. 74, 94). Further Investigation and the July 29, 2008 Statement On July 28, 2008, Matthew visited defendant at the Greene County Jail until about 4:00 pm (A. 47; RA. 98). Afterwards, Matthew contacted Catskill station of the New York State Police and reported that he had found and dug up a dead dog on Martha's property. Shortly afterward, at approximately 7:39 p.m., Matthew called again to report that he had found a human body. That second call was recorded by the State Police (RA. 98-101). Investigator Lance Aguiar, the lead investigator in the case, responded to the scene at Martha's property, learned that defendant was in jail on an unrelated matter, and also learned that defendant had possessed Martha's truck, cell phone, and credit card. Investigator Aguiar proceeded to the Greene County Jail with Investigator Shawn Houck. The State Police contacted the Sherriffs Department and notified them that the investigators wished to speak with defendant. Before arriving at the jail, Investigator Aguiar had been informed by a senior investigator at the State Police that the State Police had contacted the District Attorney's office, 13 which had advised, based on information received from Justice Baldwin, that defendant had not requested an attorney and that the investigators could speak with him (RA.97, 102-103, 125). In the early morning of July 29, 2008, Investigators Aguiar and Houck went to the jail and were informed by the jail staff that defendant was "willing to talk" (RA. 114). Investigator Aguiar did not directly ask the jail staff whether defendant was represented by counsel, and no one mentioned whether he was. Investigator Houck, however, had been informed that he had been "advised" that defendant had not requested an attorney. The investigators went to a small room adjacent to the booking office at the jail where they met, alone, with defendant (RA. 103, 116, 142). Defendant, who was not handcuffed, appeared awake and alert. Investigator Aguiar was not wearing his sidearm during the meeting, and defendant was not restrained in any way (RA. 104,144). Investigator Houck administered Miranda rights to defendant, who demonstrated that he understood them, waived them, and was willing to speak to the investigators (RA. 104-105, 128-129). They did not ask him whether he was represented by counsel on either his Catskill case or his Cairo case (RA. 119,141-142). The interview began at approximately 2:38 a.m. Investigator Aguiar was primarily responsible for taking notes during the interview (RA. 105-106, 139). 14 Investigator Houck took some handwritten notes after the interview (RA. 135)7 Defendant answered questions freely and voluntarily until he was asked how, if Martha had informed him that her dog died, as he claimed, she ended up being buried beneath it. Defendant then repeated about five times over, "If somebody did something to her," and "I can't answer what I don't know." Defendant then rose from the table, walked over to the door, banged on it, and when a corrections officer opened it, went back to his cell, ending the interview at 3:59 a.m. (RA. 112- 113, 143, 146). According to Kenneth Leis, a Sergeant in the Corrections Division of the Greene County Sherriffs Department, none of the documents of the Greene County Sheriffs Department Corrections Division showed that defendant was represented by or visited by an attorney from July 18,2008 until August 12,2008 (RA. 30-35). August 12,2008, was the first time that defendant was visited by an attorney (RA. 31). Even at that time, however, defendant still wished to speak with the State Police, and went so far as to initiate contact by requesting in writing to speak again to someone from the State Police (RA. 32). Defendant thereafter, 7 Investigator Aguiar's notes were admitted into evidence at the hearing and read into the hearing record (A. 54-62[these are Investigator Aguiar's notes. They are incorrectly labeled in the index of defendant's appendix as Investigator Houck's notes]; RA. 105-113). Investigator Houck's notes were also admitted into evidence at the hearing and read into the hearing record (RA. 136- 138). 15 on August 14, 2008, made a statement to the police, in the presence of counsel. Later that night, also in the presence of counsel, defendant made another statement to the police (RA. 23-25).8 Defense Case Defendant did not call any witnesses or present any evidence at the Huntley hearing. The Hearing Court's Decision Following the conclusion of the hearing, both sides submitted written memoranda of law (A. 17-34). In a Decision and Order, filed on March 27, 2009, the hearing court denied defendant's motion to suppress statements. Making extensive findings of fact, the court concluded that defendant was not actually represented by counsel between July 18, 2008, and July 29, 2008; that no violation of defendant's right to counsel had occurred during his July 27 and July 29, 2008, statements to law enforcement officials; and that the statements were voluntary. Accordingly, the hearing court found the statements admissible (A. 35-46). 8 Defendant did not challenge these statements (H. 5-10; RA. 21-26) 16 The Trial The People's Case At the time of her disappearance, Martha Conners was living in Catskill, New York, in a camper which had no running water or electricity aside from a generator, on a secluded piece of property she owned. She lived there with her golden retriever, her beagle, and her bulldog, Savannah (RA. 223, 230). At that time, Martha had worked at Price Chopper for the past four and-a-half years. She also worked at a Laundromat and collected scrap metal to sell to a scrapyard (RA. 216,219,252,264,297,300,317-318,345,360). Martha did not allow most people, even close friends, to visit the camper because she did not want friends to see how she lived, and she did not trust mere acquaintances (RA. 219, 300, 317, 360). Those whom Martha permitted onto the property included her son Matthew Conners, and defendant, who had taken up residence there about one to two months before her disappearance (RA. 297, 318, 338, 520). Martha was allowing defendant to live there while he "g[o]t on his feet" and quit using heroin (RA. 218, 448). Defendant also assisted Martha in selling scrap metal, or "scrapping." Before her disappearance, Martha had planned to take over her son's apartment at the nearby Sandman Motel when she disappeared (RA. 220, 315, 343). Martha's friend Allison Walker-Baker traveled from Bronx, New York, to Catskill to visit her, and arrived early in the morning on July 2, 2008. They visited 17 for some time that morning, and then Martha left them to get some sleep (RA, 341, 343-344). On July 3, 2008, Ms. Walker-Baker kept calling Ms. Conners and there was "a lot of phone tag back and forth." Ms. Walker-Baker's husband spoke with Martha on July 3 and "from then on [they] could not get hold of her." They left Martha a voicemail message on her cellphone to meet them at the drive-in movies that night (July 3), but never heard from her (RA. 345-346). On July 3, 2008, the last day Ms. Walker-Baker or her family heard from Martha Conners, Martha worked at Price Chopper from 8:52 a.m. to 6:00 p.m. (RA. 250). Despite being scheduled to work at Price Chopper on July 4, 5, 6, 11, 12, and 13, 2008, Martha never again showed up for work (RA. 252). Martha's employment was promptly terminated because she "didn't show up for work after July 3, 2008" (RA. 252). Matthew spent the evening of July 3, 2008, with his pregnant wife Josephine at the house of his mother-in-law, Juliann Barth, in Durham, New York. Before daylight on the morning of July 4, 2008, they left for Long Island to celebrate the holiday (RA. 221), and arrived around 10:00 a.m. (RA. 270). Already planning to give up his apartment to his mother prior to the trip, Matthew and Josephine Conners decided to stay on Long Island permanently, because his wife's family were there and the market for scrap metal was better there (RA. 222, 247). On the evening of July 3, 2008, between 6:00 and 8:00 p.m., defendant 18 arrived at his friend Evelyn Colon's residence. He was dirty, which those at the house assumed resulted from scrapping (RA. 349, 363). Defendant had "puncture marks, like a dog bite," on his wrist. Defendant claimed that it was an injury from working on a dirt bike (RA. 349). They began drinking alcohol and smoking marijuana, and decided to get some cocaine (RA. 363). Defendant "had like 300 bucks" which was "a nice amount of money" eRA. 352, 363). "Usually it was Martha that dropped him off' at Ms. Colon's residence eRA. 361), but tonight defendant said he had a "ride" which he claimed was a black truck eRA. 350). When one of the people at the residence, Donald Johnson, saw that the truck was not black, and it was in fact Martha's yellow truck, he asked "[ w ]hy didn't you tell me it was Martha's?" Defendant told him that "she was in Maryland and he wasn't supposed to have it" (RA. 350-351). Defendant parked the truck behind the residence on North Street because he "didn't want it in the driveway" (RA. 359, 366-367). That evening, they went out and purchased cocaine, stopped at Martha's property where only defendant went near the camper to "get a needle so he could shoot cocaine" eRA. 354). They returned to Ms. Colon's residence for the evening. On July 4, 2008, while watching fireworks, defendant and Mr. Johnson hid III a doorway "because they were both wanted by Catskill PD" (RA. 368). Defendant also spent the evening of July 4 at Ms. Colon's. He was upset that Ms. Colon had moved Martha's truck to the front of her residence. When it got dark on 19 July 5, he had her walk to the "end of the driveway to make sure there's no cops coming," so he could take the truck and go home eRA. 368). On July 6, 2008, defendant called his half-brother, Franklyn Smith, and asked Mr. Smith how to dispose of a dead body. Mr. Smith responded to defendant by saying "dig a six foot hole, put the body in it and put dirt on it, and then find an animal and place the animal in the hole and finish covering it with dirt" eRA. 384). That same day, defendant headed west to the Rome, New York area to live and spend time with Mr. Smith, as well as his mother, grandmother and cousins eRA. 385).9 Defendant spoke to his mother, Karen Smith, at least once while he was there (RA. 395, 427-428). In Rome, defendant lived with his cousin Nicole Blohm for approximately a week, during which time, she admitted, it was possible she answered the phone for him eRA. 382). Also living with defendant at Ms. Blohm's residence was Scarlet Gies, whom defendant had met on July 7, 2008, and with whom he spent nearly all of his time while in the area eRA. 391, 392-394). There were occasions when defendant's cell phone rang and he explained to Ms. Gies that it was someone whom he had to tell his "mother was in jail, and he didn't want to talk to that 9 Mr. Franklyn "actually saw" defendant "a day, maybe two" days after the phone call, at which time defendant was already in Rome. Phone records from Martha's cell phone, showed that defendant was in the Castkill area at 8 :21 p.m. on July 6, 2008, and was then in the Rome area around 10:00 p.m that same day (RA. 435-436). 20 person." Defendant asked Ms. Gies to lie to people who might call Martha's cell phone, and offered to write something out for her to say (RA. 396-397). While in Rome, defendant also drove Martha's truck and used Martha's debit card (RA. 393-395). While spending time with defendant, Mr. Smith asked defendant about the phone call regarding disposing of a body. Defendant initially replied "She come out with a gun, was shooting at me and I had to grab the gun and it accidentally went off," but then admitted, "Naw, Ijust shot that bitch in the face" (RA. 387). Meanwhile, Matthew and Josephine, traveled back to Catskill from Long Island on July 7, 2008 (RA. 221, 272).10 Matthew called Martha repeatedly on July i\ but the calls "kept not getting through, not getting through." Finally, someone answered his mother's cell phone and Matthew spoke briefly to a woman he "believed was [his] mom, and she had pretty much said they were headed towards to North or South Carolina, and then passed the phone off' at which time he talked to defendant (RA. 225). After that conversation, no one ever answered Martha's cell phone again when Matthew called - "[i]t went from ringing to 1 0 Matthew could not remember the exact date that he returned, but stated that it was "a few days after the 4th" of July" (RA. 221). Edward Capolupo, Josephine's mother's boyfriend, knew that Matthew returned on July 7, 2008, because Matthew called him to pick them up once they were back in Greene County. Cell phone records also showed that Matthew left Long Island the morning of July 7, 2008, and returned later that day (RA. 432-433). 21 answering machine, to ringing to nothing, and then to no ringing at all" (RA. 225- 227). Also on July 7, 2008, Matthew met with Benedetto Calcavecchia, a scrap yard operator, at his mother's property, to sell him scrap (RA. 222-223, 255-256). The scrap belonged to Matthew, but he kept it on his mother's property. In spite of the fact that Mr. Calcavecchia had interest in other vehicles on the property, Matthew told him he could not sell them right now because they were his mother's, and she was out of state. He told Mr. Calcavecchia that he would let him know when Martha returned (RA. 256-257). Matthew did sell an Amadeo Rossi & Company rifle/shotgun combination firearm to My. Calcavecchia's brother during the trip (RA. 258). Matthew did not see his mother while he was at the property in Catskill, and neither Matthew nor Mr. Calcavecchia saw the bulldog, Savannah (RA. 223, 258). Ms. Colon called Martha's cell phone several times trying to reach defendant because she had not heard from him (RA. 369-370). She thought it was unusual because "[y Jou could go for a couple of days without anybody answering, but not as long as I went without calling somebody or getting a hold of somebody." Finally, after being unable to reach defendant for a few weeks, she reached defendant, at which point he claimed that "he was in California with his brother, girlfriend and his cat on a beach" (RA. 369-370). 22 Approximately two-a-half weeks before August 5th (well before Martha's body was discovered), Karen Smith, defendant's mother, who lived in Utica, New York, called her former co-worker Tannell Powell in Catskill "out of the blue." She told Tannell that Martha Conners had passed away. Tannell then began searching the papers for an obituary but found none (RA. 427-430). On or about July 18, 2008, Matthew, concerned about his mother, called Jeffrey Barra, a woodworking shop operator who had dated Martha Conners (RA. 311-312). Mr. Barra told Matthew that he had not seen her in two or three weeks. Matthew asked him to check the grocery store, the Sandman Motel (because she was supposed to have moved in there), and her property (RA. 314-315). At the grocery store, Mr. Barra was told that Martha no longer worked there. At the Sandman Motel, he was told that Martha was supposed to move in, but never did (RA. 315). Mr. Barra also checked Martha's property. He did not see her bulldog, Savannah, and when he opened the door to the camper, which was unlocked, the smell from the animals inside was awful. He knew "something was wrong again because it was never like that when she was there." He noted that the door being unlocked "was unusual because if she went away she always locked it and double checked it" (RA. 316-317). Mr. Barra called Matthew back to tell him what he had found, and suggested that Matthew come up to Catskill, but Matthew did not have the money to do so at that time (RA. 319-320). 23 Also on July 18, 2008, after spending the last eleven days with Ms. Gies, defendant was pulled over in Martha's truck. Defendant admitted to the police officer that he was driving on a suspended license (RA. 397). While defendant was in custody of the Rome Police Department, it was discovered that there was a warrant out for his arrest for a probation violation in Greene County (RA. 193, 397). Troopers from Troop C in Rome picked defendant up from the Rome Police Department and handed him over to troopers from Troop F in Greene County (RA. 193). He was arraigned in the Town of Cairo Town Court and then brought to the village of Catskill Police Department because he also had an open bench warrant there (RA. 194). He was lodged at the Greene County Jail (RA. 200). Ms. Gies, who was left with the truck, took it to Mr. Smith. After defendant called Mr. Smith from jail and told him to take the truck to the junkyard and sell it, Mr. Smith sold the truck to a scrapyard (RA. 388-390). On July 26, 2008, Matthew and his wife sold their wedding rings and used the proceeds to return to Catskill from Long Island (RA. 228, 320). Mr. Barra drove them to the Martha's property, where Matthew "just walked around the property looking around like he couldn't figure out what was happening" (RA. 324) for "maybe twenty minutes, half an hour" (RA. 331). Matthew saw Savannah's chain and said it looked like someone had released the dog because the chain wasn't "strung out" (RA. 323). 24 Matthew and his wife Josephine Conners spent the night at his mother-in- law's in Durham, New York and were dropped off at the property again the next day, July 27 (RA. 324-325). They had not arranged for a ride back and were picked up walking along the road by Mr. Capolupo, who gave them a ride back to the house in Durham, New York, where they spent the night (RA. 272-274). Matthew was dirty, having worn the same clothes since his return from Long Island (RA. 287). At approximately 7: 12 p.m. that evening, Matthew reported his mother missing (RA. 194-197). The Investigation and Medical Evidence During the evening of July 27 and the early morning of July 28, 2008, following Matthew's report, Trooper Gregory Lischak had multiple conversations with Matthew. It was during these conversations that Matthew told Trooper Lischak that his mother lived at the Sandman Motel, that she had a yellow truck with black stripes on the back and an eagle on the front, and that she owned a piece of property (RA. 198-199). Matthew also told Trooper Lischak that the last thing he knew was that Martha was "traveling to the Carolina region with her friend, Travis Augustine" (RA. 199). The first place Trooper Lischak visited was the Sandman Motel where each of the neighbors said she did live there (RA. 215). Trooper Lischak recognized defendant's name and conferred with Trooper David Lane who told him that defendant was being housed at the Greene County 25 Jail (RA. 200). In response to the missing persons report, Trooper Lischak had Trooper Lane make arrangements for him to interview defendant (RA. 200). Trooper Lischak spoke with defendant on July 27, 2008, in the Greene County Jail (RA. 200-201). At trial, Trooper Lischak read his typewritten notes of the interview, in which defendant claimed to have seen Martha on about July 11, and that they traveled together to Rome before parting ways and she went on to Niagara (A. 53; RA. 210-211). Defendant claimed he bought the truck from Martha Conners for $200, and that she gave him her cell phone in order to be able to contact him. 11 Defendant claimed that Martha Conners accidentally left her bank card in the truck, but also admitted that he had used it since then. After interviewing defendant at the jail, Trooper Lischak went to Martha's camper (RA. 213-214). Trooper Lischak had to interview Martha's neighbor, Mr. Hildibrand, just to find where her camper was, because it was "so secluded and back in the woods" (RA. 214). When Trooper Lischak got to Martha's camper, he found "a bunch of pets and feces and urine all over her living area" (RA. 214). When Matthew learned from the State Police that defendant was in the Greene County Jail and had been arrested with Martha's cell phone, bank card and truck, he went to the jail on July 28, 2008 (A. 47; RA. 232). Defendant told 11 The title to Martha's truck, which was admitted into evidence, had not been signed over to defendant eRA. 508). 26 Matthew that his mother had headed toward Niagara on foot and had been picked up by a guy named Pete in a white car. He went on to say that Martha had sold him the truck and had given him the cell phone to keep in touch with her. When asked where Savannah the bulldog was, he told Matthew that the dog was sick and passed away, and was buried behind the camper on his mother's property (RA. 232-233). That same day, Matthew went to his mother 's property and looked around. He was looking for a mound of stones because that was how his mom would "normally .. . bury an animal" (RA. 235). After about thirty minutes, he noticed "some wood out of place . . . on someone else's property" (RA. 235, 276). Upon closer inspection he found a grave site in a leafY area with a lot of vegetation (RA. 235,380-381). Matthew and his mother-in-law's boyfriend, Mr. Capolupo, began to dig (RA. 277). First they uncovered the bulldog, which Mr. Capolupo pulled from the grave (RA. 237, 288). Matthew called the police to report the dog (RA. 237-283). Then, noticing the ground under the dog was very soft, they decided to continue digging (RA. 288). They uncovered a blanket similar to the one that had been on Martha's bed, and when they pulled it open, it revealed a human arm (RA. 243 -246,279-281). New York State Police Investigator Lance Aguir, along with Investigator Shawn Houck, interviewed defendant in the early morning of July 29, 2008, at the 27 Greene County Jail. After advising defendant of his Miranda rights, defendant agreed to speak with the investigators (RA. 436_45_).12 Defendant said that the last time he saw Martha was on July 10th, near Rome, New York, and that Martha was traveling to Niagara with her friend Pete. According to defendant, Martha gave him her credit card and said that she would sell him her truck for $200. Defendant added that Savannah, the bulldog, was sick and Martha said she had to put her down (RA. 446-449). Pathologist Dr. Jeffrey Hubbard performed the autopsy on Martha's body (RA. 466). Martha had a gunshot wound four inches above her left pupil (RA. 471). An X-ray revealed that a .22-caliber bullet had traveled through Martha's brain, down through the naturally-occurring hole at the base of the skull, and settled in the top of her spine (RA. 473-475). The cause of Martha's death was a gunshot wound to the head, and the manner of death was homicide (RA. 481). Dr. Hubbard pointed out that the circumstance of Ms. Conners's body having been buried deep and in clay "would probably retard the post-mortem changes in the body by excluding air, keeping the body cool and also it is very important they would include excluding the actions of insects, worms and animals" (RA. 469- 470). Dr. Hubbard indicated with a reasonable degree of medical certainty that 12 The notes were admitted and read into evidence at trial (A. 54-62). 28 Martha's body had been buried for at least a week and possibly up to four weeks eRA. 485). Savannah's body was sent to Wildlife Pathologist Dr. Ward Stone for a necropsy. Dr. Stone found the dog to have been in relatively good health prior to its death and determined the cause of death to be a gunshot to the head. Savannah appeared "well fed and well cared for" eRA. 491). Dr. Stone removed five .22 bullets from Savannah's head (RA. 491-492). It was Dr. Stone's expert opinion that the dog had been buried two to three weeks and possibly up to four weeks eRA. 494-495). A wooden cross with writing on it was recovered at the grave site. John Sardone, an expert forensic document examiner with over twenty-seven years of experience, stated that the grain of the wood caused breaks and there was "overwriting" present. The writing on the cross "wasn't wrist writing, it was more or less arm writing which is like a drawing, which is not actually writing, per se" eRA. 413-414). Due to the texture of the wood, he came to "no conclusion" - he could neither identify nor eliminate known handwriting samples (RA. 422). It was stipulated that the projectile removed from Ms. Conners and the four projectiles that were removed intact from her dog were consistent with projectiles that would have been fired from the .22 Winchester bolt action rifle found inside her camper; that a shell casing found inside her camper had been fired by that 29 specific .22 Winchester rifle; and that none of the projectiles removed from Ms. Conners or her dog were fired from the Amadeo Rossi & Company rifle/shotgun combination firearm that Matthew Conners had sold to Benedetto Calcavecchia's brother (RA. 373, 505, 511). It was also stipulated that there was blood at multiple spots inside the camper that matched a sample of Ms. Conners's DNA taken at autopsy (RA. 371-379). Defendant requested to speak with police and a recorded interview was conducted on August 14,2008. Defense counsel was present, and defendant was Mirandized. That recording was played for the jury, and a redacted transcript was provided to the jury (A. 64-127; RA. 461). Defendant stated, among other things, that Martha had dropped him off at Ms. Colon's sometime around July 3, 2008, and he stayed there until about July 5th or 6th. He hitchhiked back to Martha's, where he found her truck, cell phone, and credit cards (A. 79). Defendant decided to go to Rome about two days later (A. 80, 116). Savannah had to be put down (A. 97, 115). Later that evening, again in the presence of counsel, defendant made another statement to police at the Kingston barracks (RA. 512-513). Defendant was Mirandized, agreed to answer questions, and signed a form stating as such. Defendant stated that he thought that Matthew Conners killed Martha; that Martha sold defendant her truck for $200; and that he last saw Martha in the beginning of 30 July. The statement concluded after defendant said, "I can't get the image of her laying there out of my head. I'm not going to condemn another soul. I know what happened. Ballistics will show from the angle it wasn't me. I am six foot seven. He is three foot. I have already told you too much. I don't want to say any more" (RA. 516-523;A. 128-131). The information relating to the cause of death of Martha and Savannah was not made public until September 18th, 2008 (RA. 508-509). The Defense Case The defense called one witness, Juliann Barth, Josephine Conners' mother, and Matthew's mother-in-law. She noted that her daughter, Josephine Conners, had a first- or second-grade reading level (RA. 528). Ms. Barth claimed that some of the letters in the writing on the cross were how her daughter sometimes wrote those letters, but she admitted that she was not a handwriting expert (836-837). Indeed, Ms. Barth admitted that she did not "know anything about the field of handwriting analysis" (RA. 536). And, Ms. Barth further conceded that when she asked her daughter whether there was "any possibility" that she had written on the cross, Josephine told her "no" (RA. 545). She further claimed that, years ago, her daughter had used the phrase "doggy heaven" in reference to a dog that died (RA.531). 31 When she spoke to police about the cross, however, she did not tell them that she believed the handwriting to be her daughter's (RA. 532). Ms. Barth also admitted that she visited the defendant multiple times in jail, at which time he offered to give her anything she wanted if she helped him get out of jail (RA. 541). The Sentence On June 2, 2009, defendant was sentenced to indeterminate term of imprisonment of from 25 years to life for the murder conviction, two years for the aggravated animal cruelty conviction, and an indeterminate term of imprisonment of from two to four years for each criminal possession of stolen property conviction. All sentences to run consecutively. The Appellate Division Decision In a Memorandum and Order dated September 12, 2011, the Appellate Division, Third Department unanimously affirmed the judgment of conviction (A. 2-7). The court found that in light of the "equivocal evidence regarding representation," given by Town Justice Baldwin at the suppression hearing, "defendant did not meet his burden of showing that he was represented on the probation violation charge at the time of questioning." The court also found that "[e]ven if - despite evidence to the contrary- the arraignment memorandum constituted assignment of counsel such that defendant was represented on that charge, there was no proof of entry by counsel" (A. 3-4). 32 Additionally, the court found that "the police were not required to Mirandize defendant prior to the July 27, 2008, interview because the questioning was investigatory [into the missing person case] rather than accusatory." Thus, the court held that the hearing court did not err in denying defendant's motion to suppress his statements to police (A. 5). As to defendant's claim that he was denied the right to counsel because the court denied his request for new counsel, the court held that defendant was not deprived of his right to counsel "[ c] onsidering the lack of factual support for [his] complaints and the timing of his request, along with counsel's adequate pretrial performance," in this "complicated case" (A. 5) Finally, the court held that "[t]o the extent that defendant challenge[d] the legal sufficiency of the evidence on some counts, his arguments [we ]re unpreserved for . .. review" (A. 4, fn. 2). After a lengthy discussion of the evidence in the case, the court also found that the convictions were not against the weight of the evidence. Specifically, the court found that the conviction for Aggravated Cruelty to Animals was not against the weight ofthe evidence because "five shots to the head of a healthy dog - when anyone of those shots would have been fatal - qualifies as conduct carried out in an especially depraved or sadistic matter" (A. 7)(internal quotations and citations omitted). 33 ARGUMENT POINT ONE THE APPELLATE DIVISION PROPERLY AFFIRMED THE HEARING COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS STATEMENTS HE MADE TO THE POLICE ON JULY 27 AND 29, 2008, BECAUSE HE WAS IN CUSTODY ON AN UNRELATED MATTER BUT WAS NOT REPRESENTED BY COUNSEL AND THEREFORE COULD VALIDLY WAIVE HIS RIGHT TO COUNSEL IN THE ABSENCE OF COUNSEL. Defendant's claim that he was questioned in violation of his right to counsel is based solely on his assertion that at the time of those interviews on July 27 and 29, 2008, he was represented by counsel on the violation of probation charge for which he was being held in custody, and thus under New York law, could not waive his right to counsel, even on unrelated matters, without the presence of counsel. 13 Contrary to that claim, the record shows that the police questioning of defendant about Martha Conners on July 27 and 29, 2008, did not violate his right to counsel. With thorough support in the record, the hearing court found that defendant had not requested counsel, was not represented by counsel, and no counsel had entered the proceedings concerning the charge for which he was in custody, and accordingly no indelible right to counsel had attached as to bar 13 Defendant does not, and has never, claimed that he was represented by counsel on the failure to pay a fine case. 34 questioning. Under such circumstances, especially in light of the fact that the police made adequate inquiry concerning defendant's representation before they began their interview, defendant could, and did, validly waive his right to counsel, and the trial court correctly denied defendant's motion to suppress the statements resulting from those interviews. Upon extensive review of the hearing evidence, the Appellate Division held that, in light of the "equivocal evidence regarding representation," given by Town Justice Baldwin at the suppression hearing, "defendant did not meet his burden of showing that he was represented on the probation violation charge at the time of questioning." The court also found that "[ e Jven if - despite evidence to the contrary- the arraignment memorandum constituted assignment of counsel such that defendant was represented on that charge, there was no proof of entry by counsel" since "entry requires actual appearance or communication by an attorney" (A. 3-4). Since this claim necessarily involves a review of the facts (from the Huntley hearing regarding whether defendant was represented by counsel) and the law, it is a mixed question of fact and law and this Court's review is limited to whether there is record support for the lower court's determination that defendant was not represented by counsel. See e.g. People v Mitchell, 2 NY3d 272, 276 (2004)("the undisturbed finding that defendant's mother [did not invoke the right 35 to counsel on her child's behalf] has support in the record and thus is beyond our further review"). As relevant to the issue presented here, the indelible right to counsel bars questioning even on subjects umelated to the matter upon which a suspect is being held in custody, when the defendant is actually represented on the charge for which he is held, and counsel has entered the proceedings. People v Lopez, 16 NY3d 375, 380 (2011); People v Grice, 100 NY2d 318, 322 (2003); People v Burdo, 91 NY2d 146 (1997); People v Rogers, 48 NY2d 167 (1979). This rule is intended to insure that there is no interference with an existing attorney-client relationship - that the police do not use the existence of the umelated matter as a pretext to question defendant about the matter on which the attorney-client privilege exists. See People v Robles, 72NY2d 689, 697 (1988). If the defendant is not actually represented, either by retained or appointed counsel (People v Kazmarick, 52 NY2d 322, 324; People v Ruff, 81 NY2d 330, 332), or if there has been no actual entry by counsel in the first matter (People v Grice, supra ["'entry' is premised on the actual appearance or communication by an attorney"]), questioning concerning matters on which the defendant is not represented is permissible. Such is the case here. Defendant, of course, bears the burden of showing actual representation, and his failure to show that an attorney has actually entered the case is a failure "to 36 meet his burden of showing that he was represented by counsel on the pending ... charge. Accordingly, the interrogation [on an unrelated matter is] violative of none of the defendant's constitutional rights and his statements [are] admissible." People v Rosa, 65 NY2d 380,387-388 (1985). Here, the uncontroverted evidence from the Huntley hearing established that defendant was arrested on two outstanding bench warrants, and that he appeared in court in connection with a violation of probation. When asked if he wanted an attorney to represent him, defendant stated that he did not know whether he wanted one, and that he did not know that he needed one. Thus, he did not request counsel at his arraignment; nor was he told that counsel had been assigned. These facts were unchallenged at the Huntley hearing, and are critical because they set the course for the court's subsequent actions and drive the applicable right-to-counsel analysis. Town Justice Thomas Baldwin, who presided over the proceeding, testified that he informed defendant of his rights, including his right to counsel. When defendant expressed that he did not know if he wanted counselor that he needed it, Town Justice Baldwin informed him that he could decide later whether he wished to be represented by counsel ("And being that it was a violation of probation hearing, I told him that I was going to set bail and he could decide") (RA. 158- 160). The Town Justice further testified that, as is his usual practice, he wrote 37 down "Greene Co. Public Defenders Office" on the memo, so that if defendant later decided that he wanted to be represented by counsel, he could then be evaluated for his eligibility for it, and if he was eligible for it, someone from the Greene County Public Defender's Office could then be assigned to represent him (H. 157-160; RA. 160-162). That notation, however, as Judge Baldwin explained, was not a direct and immediate assignment of counsel, which would have disregarded defendant's stated ambivalence about having counsel (RA. 161-162, 167-168).14 Additional evidence introduced at the Huntley hearing showed that there were no phone calls between defendant and any attorney, no jail visits to defendant by any attorney, and not intake evaluation of defendant by the Greene County 14 Indeed, that procedure is consistent with what is set forth in the CPL regarding probation violations. CPL § 410.40(2) allows a court to issue a warrant for a probation violation. Pursuant to CPL § 410.60, when a defendant has been taken into custody for a violation of a sentence of probation, the defendant must "forthwith be brought before the court that imposed sentence." The court may commit the defendant if it has "reasonable cause to believe" that defendant violated a condition of the sentence. Thereafter, a defendant has a right to a hearing on a violation (see CPL § 410.70) and the right to counsel. See CPL § 410.70(4). Thus, defendant's reliance (defendant's brief, p. 18) on NY Court Rule 200.26 is misplaced because that section is applicable when a defendant is brought before the court pursuant to CPL § 120.90 (warrant of arrest) or § 140.20 (arrest with a warrant), and not on a violation of probation, in which case the defendant is still under the supervision of the court, and is subject to the procedure set forth in CPL Section 410. See CPL § 410.50(1)("Custody. A person who is under a sentence of probation is in the legal custody of the court that imposed it pending expiration or termination of the sentence"). Indeed, pursuant to CPL § 120.10, under the definition of arrest warrant, it states that "the sole function of a warrant of arrest is to achieve a defendant's court appearance in a criminal action for the purpose of arraignment upon the accusatory instrument by which such action was commenced." In any event, the point of that rule is to ensure that a defendant has representation if he so wishes, which is exactly the right that Justice Baldwin was protecting. 38 Public Defender' s Office from the time of his arrest on July 18,2008, until after defendant made his second statement to the police on July 29, 2008 (A. 47; RA. 32, 34). Because there was no evidence that any intake occurred until after defendant's second statement to the police, no determination could have been made about whether he qualified for representation by the public defender, and no one from the public defender's office could have been appointed to represent him, let alone actually enter the case and trigger the bar to questioning of defendant on unrelated matters . 15 At the Huntley hearing, defendant presented no evidence and called no witnesses. Likewise, he did not controvert either the evidence of his equivocations and failure to request counsel at arraignment, or Town Justice Baldwin's characterization of how he refers defendants who are undecided about whether they would like assigned counsel. On a motion to suppress based on a claimed violation of the right to counsel, the defendant bears the ultimate burden to 15 Representation on the original charge that led to the sentence of probation is terminated once the charge has been disposed of by conviction, so even if defendant had been represented by counsel on the original charge, that did not mean that the representation continued to the probation violation. See People v Persons, 181 Misc 2d 189 (Co Ct Nassau Co June 18, 1999)("When a pri6r charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charges ... . Neither the cases or the evidence presented at the hearing establish that counsel on an original charge continued to a violation of probation. Indeed, the practice of the court is that, upon arraignment upon a subsequent violation of probation, the entire retention or assignment of counsel process begins anew")(citing People v Bridges, 226 AD2d 471[2d Dept 1996])(internal quotations omitted). 39 establish the facts necessary to the success of his motion. Of course, the People have the initial burden to come forward with proof, which, if not rebutted, could defeat defendant's claim. But once that initial burden is met, defendant must prove that the right to counsel had actually attached. Rosa, 65 NY2d at 387 ("When a defendant seeks to suppress his statements because he had in fact been represented by counsel on a pending unrelated charge, he remains the one who is best and most logically able to prove his allegation that he was represented by counsel on that pending unrelated charge"); People v Hernandez, 214 AD2d 485 (1st Dept 1995) ("a defendant still has the burden of proving that counsel, in the first place, had actually entered the matter .... "); People v Beekman, 193 AD2d 842 (3d Dept 1993), Iv denied 82 NY2d 713; see also People v West, 81 NY2d 370, 378 (1993). Thus, contrary to defendant's assertion that Justice Baldwin was "speaking in code" (defendant's brief, p. 20), about the memo, Justice Baldwin was following appropriate procedure to ensure that defendant had counsel at the parole violation hearing if he so chose. Justice Baldwin clearly explained the intake process for screening to determine if a defendant was eligible for assignment of counsel, and this process makes sense in cases where, as here, a defendant is unsure if he wants counsel. The screening process ensures that, if a defendant decides later on that he wants counsel, counsel could be appointed if a defendant is eligible. The memo is not contrary to Justice Baldwin's testimony, and the parol evidence rule referenced 40 by defendant (see defendant's brief, p. 20), has no applicability in this criminal case. Defendant also mischaracterizes the memorandum by implying (defendant's brief, p. 19), that Justice Baldwin checked a box that said "yes" defendant wanted counsel. In fact, the "yes" box is checked next to where Judge Baldwin wrote "Greene Co Public Defender's Office," consistent with his testimony that he checked the box so as to initiate the intake process. The checked "yes" box does not indicate that defendant requested counsel (A. 48). Indeed, even if there were some credible inference that Judge Baldwin's memo showed assignment of counsel, there is nevertheless no proof that any attorney ever entered the proceedings so as to bar questioning on unrelated matters. As this Court made clear in Lopez, 16 NY3d at 382, entry is a necessary piece of the inquiry ("Rogers therefore requires inquiry on three objectively verifiable elements - custody, representation and entry"). Indeed, the entry requirement predates Rogers, (see People v Hobson, 39 NY2d 479, 481  ["Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer... "], and has been reaffirmed by this Court on numerous occasions. See People v Cawley, 76 NY2d 331 , 347 (1990)("To afford him an indelible right to counsel on the new murder and robbery 41 charges based on the superficial relationship with a lawyer assigned to him for arraignment on the prior charges, presses reason to the limit '); see also West, 81 NY2d at 377 (1993); People v Steward, 88 NY2d 496, 498 (1996); People v Burdo, 91 NY2d 146, 149 (1997); Lopez, 16 NY3d at 382. Defendant makes arguments that attempt to circumvent this requirement in mUltiple ways. First, defendant ignores the entry requirement completely by stating the applicable legal standard as: "In New York when a defendant is held in custody on a charge for which he is actually represented by counsel, he may not be interrogated or questioned by police with respect to any matter in the absence of counsel" (defendant's brief, pp. 16-17). That statement completely ignores the very necessary element that counsel has entered the matter. Next, defendant argues that, when Grice "spoke of 'entry it was in the very specific and narrow context of attorneys that have been privately retained," and that "'entry' is not required when the indelible right to counsel is based upon the assignment of counsel" (defendant's brief, pp. 21-22). This reading is erroneous because Grice makes no such distinction and the holding refers to counsel generally. Defendant's reading ignores Grice's central holding: "that an attorney 'enters' a criminal matter and triggers the indelible right to counsel when the attorney or a professional associate of the attorney notifies the police that the suspect is represented by counsel." Grice, 100 NY2d at 324. See also Lopez, at 42 385 ("The feature that distinguishes [two earlier right to counsel] ... cases IS whether the defendant was in custody for an offense with actual representation on that charge and notification to the police"); People v Borukhova, 89 AD3d 194 (2d Dept 2011)("An attorney 'enters' a case by actually appearing or directly communicating with the police by telephone"). Here, there was no actual representation and no notification. To make a distinction as defendant urges between assigned and retained attorneys would create two divisions of attorneys, with different rules, in an already complicated area of criminal law. The reading that defendant urges would be novel, since case law indicates that the holding in Grice and other right to counsel cases have been applied in cases involving both private and public counsel. See e.g. People v Williams, 13 Misc 3d 886, 889, 891 (Sup Ct Kings Co Sept 20, 2006)(citing to holding of Grice in case where 18-B counsel had been assigned to represent defendant on the other matter); see also Lopez, 16 NY3d at 379, 381 (citing Grice where assignment of lawyer on Pennsylvania charge). And, as noted, the entry requirement has been applied in numerous cases involving assigned counsel. See e.g. Hobson, 39 NY2d at 482 (Legal Aid attorney assigned); Burdo, 91 NY2d at 146 ("defendant had been assigned legal representation following his arraignment and subsequent incarceration on a pending charge"); Steward, 88 43 NY2d at 498 (defendant "had been assigned counsel in the pending misdemeanor case"). In fact, it has been held, even in New York, that the mere fact that counsel has been assigned for purposes of arraignment and appeared only to discuss defendant's bail status does not afford a defendant the right to counsel as explicated in Rogers. See People v Roberts, 236 AD2d 848 (4th Dept 1997). What this suggests is that the mere fact of an arraignment and a bail determination does not, by itself, inexorably lead to the conclusion that defendant has counsel. See e.g. Cawley, 76 NY2d at 347 ("To afford him an indelible right to counsel on the new murder and robbery charges based on the superficial relationship with a lawyer assigned to him for arraignment on the prior charges, presses reason to the limit"). To that end, defendant urges that entry "by the public defender is complete upon the order assigning counsel" (defendant's brief, p. 25). Again, however, in this case, there was no order assigning counsel. Defendant was not sure if he wanted counsel, and, in any event, the record clearly shows that defendant was more than willing to speak with police. In fact, he initiated (with counsel) the first interview on August 14, 2008. Presumably, had there been an effectuated order assigning counsel such that the Public Defender's Office believed that they were representing defendant, someone from that office would have initiated 44 communication with defendant long before August 12, 20078, when defendant was first visited by at attorney from the Public Defender's Office (A. 47; RA. 30-35). It should be noted also that the police in this case scrupulously protected defendant's right to counsel in both the challenged interviews. On July 27, there was no indication that a crime had been committed, and Trooper Lischak's interview with defendant was purely in response to a missing person report (see Point Two herein for further discussion). Furthermore, Trooper Lane made the arrangements that permitted Trooper Lischak to speak with defendant. Defendant agreed to speak with Trooper Lischak, signed a form granting the interview request, and defendant "cooperat[ed] ... fully" (RA. 19, 62-63, 90). The form signed by defendant included acknowledgements that defendant understood that he was free to speak or not to speak with Trooper Lischak, that he was freely granting permission to Trooper Lischak to speak with him, and that he could speak to a "legal representative or attorney" first, and postpone the interview if he so chose (RA. 19). On July 29, 2008, the situation had changed, since Martha's body had been found. Before speaking with defendant, Investigator Aguiar, an experienced member of the State Police, inquired to determine whether defendant was represented by counsel. A senior investigator contacted the Greene County District Attorney, who in tum contacted Town Justice Baldwin. The senior 45 investigator reported back that defendant had not requested counsel and was not at that time represented by counsel (RA. 159-160). Thus, any requirement for police inquiry was met. See Lopez, 15 NY3d at 377; see also People v Carranza, 8 NY3d 729 (2004) (defendant's statements to the police admissible where, even though defendant had been assigned a lawyer in an unrelated pending case, "the police department questioning defendant had not been informed that an attorney represented him or sought to communicate with the police on his behalf') . Before the interview began, Miranda rights were read to, and waived by, defendant (RA. 104). The interview was ended when defendant indicated that he did not wish to speak further (RA. 113). Thus, the People's evidence at the hearing, if credited, clearly demonstrated the legality of these interviews. Defendant provided no evidence that he was actually represented on the violation of probation charge, and thus failed to meet his burden. He provided no facts to substantiate his claim of representation or to discredit Judge Baldwin. On this record, the only reasonable conclusion that may be drawn is that Town Justice Baldwin's testimony was truthful, accurate, and credible. Especially in light of the fact that the judge had held his office for 27 years at the time of the hearing, and was the Executive Director of the New York State Magistrate's Association, it was altogether proper that the suppression court 46 credited his unchallenged testimony on the common practice and procedure of his own court. In a Decision and Order dated March 24, 2009, the hearing court denied defendant's motion to suppress his statements to the police (A. 35). It found no violation of defendant's right to counsel, and found that defendant gave his statements to the police voluntarily (A. 45). The court reasoned that, although defendant's right to counsel had indelibly attached on the violation of probation case, the attachment of the right to counsel is distinct from actual representation by counsel. Because defendant had neither requested counsel on the violation of probation charges, nor been actually represented by counsel on them, police could question defendant on unrelated matters, and defendant was not required to waive his right to counsel in the presence of an attorney for the waiver to be valid. Furthermore, there was no evidence of any contact between defendant and an attorney from the time of his arrest on July 18 through the end of his interview by the police on July 29, 2008. The court concluded that defendant was unrepresented by counsel on the matter of his violation of probation during that time period, and both statements were voluntary and free from coercion (A. 42-45). The record amply supports that finding. The Appellate Division, after an extensive review of the hearing facts, found that, "given the equivocal evidence regarding representation, defendant did not 47 meet his burden of showing that he was represented on the probation violation charge at the time of questioning (A. 4). The court also found that, "despite evidence to the contrary," if the memo constituted assignment of counsel, "there was no proof of entry by counsel" (A. 4). Moreover, even if this Court believes that counsel was assigned and should have foreclosed the interviews from occurring without a waiver by defendant in the presence of counsel, the first statement, made July 27, 2008, was made to Trooper Lischak in the course of his missing person investigation in an effort to find Martha. Accordingly, for the reasons fully explained in Point Two, infra, that statement was admissible under the emergency doctrine of People v Krom, 61 NY2d 187 (1984) . As the Appellate Division found, "the questioning was investigatory rather than accusatory; defendant was not a suspect in the missing person case at that time and was merely being questioned for information that could help determine the victim's whereabouts" (A. 5). That finding, as explained in Point Two, is supported by the hearing record. Finally, although the People maintain that the hearing court correctly denied suppression of the statements made by defendant on July 27 and 29, even if there was error as to the admission of either or both of these largely exculpatory statements, such error was harmless. See e.g. Lopez at 386 -387 ("A violation of the indelible right to counsel does not automatically constitute reversible error. 48 Instead, it is reviewed under the harmless error doctrine for constitutional violations. Errors of this type are considered harmless when, in the totality of the evidence, there is no reasonable possibility that the error affected the jury's verdict. If no such possibility exists, the error is deemed to be harmless beyond a reasonable doubt"). Here, there is no reasonable possibility that the introduction of either, or both, of defendant's statements to the police made on July 27 and 29, 2008, affected the jury's verdict in light of the overwhelming evidence against him. People v Crimmins, 36 NY2d 230, 241 (1975). Defendant's first statement to Trooper Lischak was a brief narrative in which he merely explained when he last saw Martha, how he came into possession of her property, and where defendant believed she might have been headed when they parted ways. Though self- serving, defendant made no admissions to Trooper Lischak that a jury could seize upon as direct evidence of his guilty of any of the crimes for which he was convicted. Defendant's second statement, on July 29, 2008, to Troopers Aguiar and Houck, was disjointed and rambling, and though lengthier and more detailed than his initial statement, was similarly devoid of direct admissions. While defendant terminated the police interview upon being pressed as to whether "somebody did something to" Martha and stating that he could not answer what he did not know, 49 that evidence was cumulative to defendant's first statement of August 14, 2008, which defendant never challenged and was properly admitted at trial. Indeed, defendant told a variety of stories to different people at different times about when he last saw Martha; where he last saw her; when, why, and with whom he traveled to Rome, New York; how he happened to have possession of Martha's truck, debit card and cell phone; what he knew about Savannah's death, and what he told others about it. 16 His last statement to Investigator Hammer (which began on August 14, 2008, and was concluded on August 15,2008), a statement which has not been challenged was, "I can't get the image of her laying there out of my head . . . . Ballistics will show from the angle that it wasn't me ... " (A 280). At that time, the manner of death had not been made public (RA. 508-509). Defendant's statements, with or without the two at issue here, created a maze of contradictions that fatally undermined his credibility. Furthermore, the other evidence at trial pointed directly at defendant. That evidence included defendant's admission to his half- brother that he killed a woman in the exact 16 For example, defendant told Matthew that Martha was headed to Niagara with a guy named Pete, and Savannah had died and was buried behind the camper (RA. 232-233). Defendant told Ms. Gies that he had "bought [the truck] from somebody in the Catskills" for $200 (RA. 393). He told Ms. Colon that "Martha went to visit her sister and left him the truck and cell phone so that when she called him he could go and get her" (RA. 365). Defendant informed Mr. Johnson that Martha was in Maryland and defendant was not supposed to have her truck (RA. 350-351). Finally, when Mr. Smith asked defendant about the truck, defendant said, "[i]t's not reported stolen, don't worry" (RA. 386). 50 manner that Martha was killed, and that defendant asked him how to dispose of a body. The evidence also included testimony that the victim's body was discovered buried in the exact and utterly peculiar manner in which defendant's half-brother advised him. Defendant, who had been using Martha's cell phone and credit card, was arrested driving Martha's distinctive truck. In short, where defendant was unsure if he wanted to be represented by counsel, the court set into action an appropriate procedure to protect defendant's right to counsel without trampling defendant's right to proceed without counsel. Defendant spoke with the police willingly on multiple occasions, both with and without counsel. In light of the facts of this case, the suppression court correctly denied defendant's motion. 51 POINT TWO DEFENDANT'S CLAIM THAT HIS JULY 27, 2008, STATEMENT TO POLICE SHOULD HAVE BEEN SUPPRESSED BECAUSE HE WAS NOT MIRANDIZED IS UNPRESERVED, AND, IN ANY EVENT, SINCE NO MIRANDA WARNING WAS REQUIRED, THE HEARING COURT PROPERLY DENIED DEFENDANT'S MOTION TO SUPPRESS THE STATEMENT (responding to Appellant's Point III). On July 27, 2008, Trooper Lischak, investigating the disappearance of Martha Co=ers, met with defendant at the Greene County Jail to see if defendant knew anything that would assist in the missing person investigation. Defendant agreed to be interviewed, and cooperated fully. Since, under the totality of the circumstances, defendant was not in custody for purposes of Miranda when Trooper Lischak questioned him, and because the statements were made in the emergency circumstances of a missing person investigation, no Miranda warnings were gIven. As an initial matter, this claim is unpreserved for review by this Court because defendant raised this specific issue for the first time in the Appellate Division. While defendant made an omnibus motion in which he argued that his July 28, 2008, statement to police should be suppressed (RA. 1-15) and advanced that argument again in his post-Huntley hearing memorandum (A. 17-20), defendant never argued in the trial court that the statement should be suppressed 52 because Miranda warnings were not given. Notably, this issue was not specifically addressed in the hearing court's decision. I7 The Appellate Division decision did not address the preservation issue. Thus, this claim is outside of this Court's purview. See CPL § 270.05(2). To the extent that this specific claim was enveloped by his general motion to suppress his statements, it is nonetheless without merit. Moreover, since the question of whether defendant should have received Miranda warnings is a mixed question of law and fact, the trial court's decision denying defendant's motion to suppress his statement "must be affirmed unless no record basis exists for this conclusion." People v White, 10 NY3d 286 (2008). Defendant alleges that it is "conceded" that defendant was in custody when the statement was made. While true that defendant was injail at the time ofthe statement, that alone does not mean that he was "in custody" such that Miranda warnings were required before questioning by police. This Court has held, "we decline to adopt a per se rule that any questioning of an inmate in a correctional facility is custodial interrogation under Miranda v. Arizona." People vAlls, 83 NY2d 94, 100 (1993); see also People v Passino, 53 AD3d 204 (3d Dept 2008) ("Alls ... stands for the 17 The hearing court did, however, find that defendant was not Mirandized because "he was not a suspect and was not being interrogated" (A. 40); found defendant's statements "voluntary," and denied his motion to suppress where the record showed defendant's "willingness to speak to law enforcement officials on both July 27, 2008, and July 29, 2008" (A. 45). 53 proposition that simply because an inmate is confined to a correctional facility does not mean that he or she is in custody when questioned by authorities"). The Court of Appeals found Miranda warnings to be necessary when the circumstances "entail added constraint that would lead a prison inmate reasonably to believe that there has been a restriction on that person's freedom over and above that of ordinary confinement in a correctional facility." Ails, 83 NY2d at 100. There is no evidence of any such "added constraint" when Trooper Lischak spoke to defendant in this case. All of the evidence adduced at the Huntley hearing demonstrates that defendant freely and voluntarily answered Trooper Lischak's questions. Indeed, before he even left the police station, Trooper Lane contacted the Greene County Sheriffs Department to determine whether Trooper Lischak would be permitted to interview defendant, and whether defendant would consent to be interviewed. After being informed by Trooper Lane that defendant indeed consented to be interviewed, Trooper Lischak went to the Greene County Jail to interview him eRA. 48, 63). Once at the station, Officer Ross of the Greene County Jail handed defendant a form and told defendant that "the troopers were here, and they ... want to speak to you about a missing person, you 're not under arrest at this time, and if you would like to talk to 'em, sign it, if you don' t want to talk to 'em, don't sign it" eRA. 174-175). The form stated, 54 I, THE ABOVE NMvlED INMATE OF THE GREENE COUNTY JAIL, HAVING BEEN ADVISED BY THE CORRECTIONS STAFF THAT IT IS SOLEY MY DECISION TO ALLOW THE INDIVIDUAL INDICATED BELOW TO CONDUCT AN INTERVIEW WITH ME ON OR ABOUT (DATE) 7/27/08 AND THAT I HEREBY FREELY GRANT MY PERMISSION TO SUCH AN INTERVIEW. I HAVE ALSO BEEN ADVISED THAT I HAVE THE RIGHT TO POSTPONE THIS INTERVIEW UNTIL SUCH A TIME THAT I HAVE CONFERRED WITH MY LEGAL REPRESENTATIVE OR ATTORNEY. (RA. 19). Defendant signed the form, met with Trooper Lischak, and spoke with him alone and unrestrained in a room for less than an hour. Defendant answered every question that was asked of him, did not refuse to answer any questions, and "was cooperating with [Trooper Lischak] freely" (RA. 90). Thus, defendant was informed that he was not required to participate in the interview, that he was free to postpone it or not speak to Trooper Lischak at all, that he was not under arrest, that it was about a missing person, and that he could speak to an attorney first if he wished. Defendant was not a suspect at the time (RA. 87). On these facts, and under the totality of the circumstances, Trooper Lischak's questioning did not amount to custodial interrogation requiring him to administer Miranda warnings to defendant. Moreover, it is well settled that New York recogmzes an "emergency exception" to Miranda and the right to counsel "[w]hen the police are searching for 55 a person who has recently disappeared" and need "prompt assistance." Krom, 61 NY2d at 199-200. Police investigations into the whereabouts of missing persons fall under the "emergency exception" or "rescue doctrine" as it is also known, both under the Fourth Amendment to the US Constitution and under the New York State Constitution. This Court has recognized that the police have a "multifaceted" role in society. They do not always act in their role to enforce the law, and sometimes their role is to perform "other public service functions," including supplying "emergency help and assistance." People v DeBour, 40 NY2d 210, 218- 219 (1976) (police in their other public service functions "should be given wide latitude to approach individuals and request information," but when "engaged in their criminal law enforcement function their ability to approach people involves other considerations and will be viewed and measured by an entirely different standard of reasonableness"). This Court has explained: Delay of the investigation may also prove fatal to the missing person when it is occasioned by the inability of the police to employ the usually less-intrusive technique of making inquiry of all persons, even those who may be represented by counsel, if they are likely to have, or actually claim to have, information of the person's whereabouts. The emergency exception adopted in the Fourth Amendment cases undoubtedly reflects the reasonableness standard incorporated in that amendment. However, the State constitutional right to counsel is also subject to limitations dictated by reason and policy. Krom, 61 NY2d at 199. 56 In Krom, State Police investigators questioned the defendant at his home about a missing person who had been kidnapped, and gave him Miranda warnings, which he waived before telling the police that he might know something about the kidnapping, and requesting $400,000 in exchange for the information. The police asked him to go back to the station with them. He agreed. There, he declared that he would lead the police to the victim if he would be paid. The police officers refused to sign an agreement, defendant attempted to leave, and they arrested him. Defendant then invoked his right to counsel, and the police stopped questioning him.ld. at 193-194. After unsuccessfully attempting to retain two successive private attorneys, the defendant refused a Legal Aid attorney and told the police he would be his own lawyer. Ultimately, the defendant led the police to a large box with a lock on the lid. Inside was the victim, who had died of suffocation. The police told the defendant they were holding him for the murder of the victim. The defendant made additional incriminating statements at the scene, then was questioned again at the precinct and gave a full oral confession. Id. at 194-195. This Court found the statements Krom made after he had invoked his right to counsel, but while the police were still trying to locate the victim, admissible. Only upon discovering the victim's body should the police have ceased questioning the defendant. The Court of Appeals concluded, 57 When the police are searching for a person who has recently disappeared, the need to provide prompt assistance is not terminated once the police learn that the person has been abducted. Even if the suspected kidnapper has been arrested the police emergency role may continue as long as the victim's whereabouts remains unknown. It would not be reasonable or realistic to expect the police to refrain from pursuing the most obvious, and perhaps the only source of information by questioning the kidnapper, simply because the kidnapper asserted the right to counsel after being taken into custody. To hold that the special restrictions of the State right to counsel rule extend into this area of police activity would either dangerously limit the power of the police to find and possibly rescue the victim or would, perversely, permit the kidnapper to continue his ransom demands and negotiations from the sanctuary of the police station. We therefore hold that the police did not violate the defendant's right to counsel under the State Constitution by questioning him concerning the victim's whereabouts. Id. at 199-200. Here, Officer Lischak was responding to the precise situation for which the "emergency circumstances" exception was created - - a mlssmg person investigation. Trooper Lischak received the mlssmg person assignment and reacted immediately to try to find Martha. First, he went to the places where she lived and worked, and spoke to people at each location about her eRA. 55-59). That no one at the Sandman Hotel nor at the Price Chopper had seen her during the previous three weeks, and that she had missed work, "just added to the fact that we needed to find her" eRA. 59). Trooper Lischak followed up on every lead he received, and attempted to speak to every individual who might have seen Martha. He was aware of defendant only from his conversation with Matthew, who 58 mentioned defendant as one of her friends, who might know where she was. Trooper Lischak was simply talking to defendant in an effort to, "[fJind out where she might be so I could locate her, and end my case," and "I was just there to find out ifhe had any information regarding Martha" (RA. 62, 85). When the interview ended, Trooper Lischak immediately began following up on the "pretty good leads" he believed defendant provided him. Because defendant suggested that Martha Conners might have traveled to the Niagara area, Trooper Lischak attempted to identify and contact people there who knew her (RA. 69). Trooper Lischak stated, "I just wanted to find Martha" (RA. 71). In describing the state of the investigation after he had questioned defendant and as his shift ended, Trooper Lischak observed, "We didn't know what was going on yet. We didn't have a ton of information. We just knew that we wanted to find her. .. " (RA. 74). In short, once he received the missing person assignment during his shift on July 27,2008, virtually all of Trooper Lischak's actions were taken in order to find Martha Conners. After interviewing defendant, Trooper Lischak did not attempt to rebut anything defendant told him, and did not question defendant about his other charges. Nor did he tape-record the interview. Instead, Trooper Lischak immediately began attempting to contact the other people defendant named and who might have additional information about her whereabouts. Thus, Trooper 59 Lischak's questioning of defendant was pennissible because of the "emergency circumstances" of the missing person investigation. As this Court held, A primary role of the police is to prevent crime and provide emergency assistance to those whose lives may be in danger. Once a crime has been committed the police generally assume their secondary role of attempting to apprehend the person responsible, and gathering sufficient evidence to obtain a conviction. . .. When the sole purpose of the investigation is to solve a crime or obtain evidence needed to secure a conviction, this restriction [limit to question a person represented by counsel unless counsel is present] has often meant that the guilty party must go free. But ifthe same restriction is imposed in cases where the police are engaged in their primary duty of attempting to provide assistance to a person whose life is, or may be, in danger, there is the additional risk that delay or frustration of the investigation may result in death or injury of the victim. Krom, 61 NY2d at 198. If the police cannot question someone In custody about the possible whereabouts of a missing person because the person in custody has counsel, the police will lose precious time that may be necessary to locate and save the life of the missing person. Because the nature of the questioning is not accusatory, but investigatory, its ultimate aim is to enable the police to fulfill its primary mission to protect the safety of the public, which safety extends to individual members of the public, and such questioning does not violate the rights of a person in custody simply because it is not preceded by Miranda warnings and a valid waiver. See e.g. People v Doll, 98 AD3d 356 (4th Dept 2012), Iv. granted 08/20/2012 by 60 Justice Fahey (where defendant was discovered in bloody clothes and police were concerned that another person was injured, the fact that defendant was not Mirandized did not require suppression of his statements because the police were questioning him about an injured person); see also People v Zalevsky, 82 AD3d 1136, 1138 (2d Dept 2011)(Given the "legitimate concern of the police for the safety of the victim, the statements of the defendant regarding the victims whereabouts was lawful" even though defendant was not first Mirandized). Defendant argues that there was no exigency here since "Martha had been missing for as many as three weeks before the police questioned [defendant] (defendant's brief, p. 34). If anything, the fact that Martha had been missing for some length of time only raised alarm and heightened the need to act expeditiously. As Trooper Lischak stated, the fact that no one at the Sandman Hotel or Price Chopper had seen Martha in three weeks, "just added to the fact that we needed to find her" (RA. 60). Moreover, although no one had seen Martha in several weeks, Matthew reported her missing on July 27, 2008, the same day that Trooper Lischak spoke with defendant (RA. 44-45).18 18 To the extent that defendant, by arguing that "from the notes of the interview it is apparent that the police were engaged in a criminal investigation" (defendant's brief, p. 34) is referring to the stolen property, that argument is similarly unpreserved because it was not raised below. In any event, Trooper Lischak did not consider defendant to be a suspect at the time of the interview (RA. 87), he never accused defendant of stealing anything, and his questions about Martha' s property were part of his efforts to locate her. 61 Simply put, elevating defendant's misguided notion of what constitutes an "emergency" into law, either by court ruling or by statute, necessarily would mean that more missing people would die, more missing people would never be found, and more murderers and kidnappers would frustrate justice and avoid accountability for their actions. Accordingly, the Appellate Division correctly found that "the police were not required to Mirandize defendant prior to the July 27, 2008 interview because the questioning was investigatory rather than accusatory; defendant was not a suspect in the missing person case at that time and was merely being questioned for information that could help determine the victim's whereabouts" (A. 5). That decision should be affirmed because it is supported by the record. Importantly, here, defendant clearly did not request counsel and was willing to speak with Trooper Lischak. Even assuming, arguendo, that defendant's statements to Trooper Lischak should have been suppressed, any such error was harmless in light of the overwhelming other evidence of defendant's guilt, as discussed in Point I above. 62 POINT THREE DEFENDANT'S GUILT OF AGGRAVATED CRUELTY TO ANIMALS WAS PROVEN BEYOND A REASONABLE DOUBT AND THIS UNPRESERVED CLAIM WAS PROPERLY REJECTED BY THE APPELLATE DIVISION (responding to Appellant's Point II). Defendant killed Savannah, Martha Conner's bulldog, by shooting her five times in the head. He killed Savannah so that he could dump her body on top of Martha's body, because he had been advised that the best way to dispose of a body was to "dig a six foot hole, put the body in it and put dirt on it, and then find an animal and place the animal in the hole and finish covering it with dirt" (RA. 384). Defendant claims that the evidence was insufficient to convict him of Aggravated Cruelty to Animals (Agriculture and Markets Law § 353-a). Despite his current objection, which he also raised in the Appellate Division, defendant failed to make any objection whatsoever at trial, and thus, his claim is completely unpreserved, and beyond this Court's review. Because the jury's verdict was supported beyond a reasonable doubt, his claim is also without merit. At trial, defendant did not move for a trial order of dismissal either at the end of the People's case or at the close of all proof (RA. 525, 543). It is well settled that, in order "[t]o preserve for this Court's review a challenge to the legal sufficiency of a conviction, a defendant must move for a trial order of dismissal, 63 and the argument must be 'specifically directed' at the error being urged." People v Hawkins, 11 NY3d 484 (2008) (citing People v Gray, 86 NY2d 10, 19); People v Hines, 97 NY2d 56,62 (2001). An order denying a motion to inspect the Grand Jury minutes and to dismiss the indictment due to insufficient evidence is insufficient to preserve this claim. See CPL § 210.30(6); People v Smith, 4 NY3d 806 (2005). Indeed, in his Appellate Division brief, defendant conceded that the point was unpreserved (defendant's Appellate Division brief, p. 61, fu. 9). Unsurprisingly, the Appellate Division found that, "[t]o the extent that defendant challenge [ d] the legal sufficiency of the evidence on some counts, his arguments are unpreserved for ... review" (A. 5). Since defendant failed to object, his claim has not been preserved for review by this Court. See CPL § 470.05(2); see also People v Patterson, 39 NY2d 288 (1976)("Our court, with a narrow exception applicable in capital cases, is strictly a law court. A failure to object to a charge at a time when the trial court had an opportunity to effectively correct its instructions does not preserve any question of law that this court can review. . .. A defendant cannot be pennitted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal"). In any event, defendant's guilt of Aggravated Cruelty to Animals was supported by legally sufficient evidence. In assessing a legal sufficiency claim, 64 this Court must view the evidence in the light most favorable to the People, indulging all inferences in the People's favor, to determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Conway, 6 NY3d 869,872 (2006); People v Santi, 3 NY3d 234, 246 (2004); People v Cabey, 85 NY2d 417, 420 (1995). If there "is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial ... and as a matter of law satisfy the proof and burden requirements for every element of the crime charged," then the jury's verdict must be upheld. People v Bleakley, 69 NY2d 490, 495 (1987); see also People v Danielson, 9 NY3d 342, 348 (2007); People v Romero, 7 NY3d 633, 636 (2006). In conducting that review, an appellate court should ordinarily defer to the jury's determination, and not substitute its judgment for that of the fact-finder. People v Loughlin, 66 NY2d 633,634 (1985); People v Malizia, 62 NY2d 775,757 (1984). Pursuant to Agriculture and Markets Law § 353-a(l) "a person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he . . . intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty. For purposes of this section, 'aggravated cruelty 'shall mean conduct which: (i) is intended to cause extreme physical pain, or (ii) is done or carried out in an especially depraved or sadistic manner." 65 The word "depraved" is not defmed under the Agriculture and Markets law, thus, "courts should construe the term using its 'usual and commonly understood meaning. ", Orens v Novello, 99 NY2d 180, 186 (2002), citing Rosner v Metro Proper & Liab Ins Co, 96 NY2d 475 (2001). See also People v Knowles, 184 Misc 2d 474, 476 (Co Ct Rensselaer Co May 15, 2000)("Considering the phrase [aggravated cruelty] as a whole, a person of ordinary intelligence would understand what conduct is prohibited by statute"). There is no dispute that Savannah, who was well fed and well cared for, was a companion animal and that she was intentionally killed by being shot in the head five times. The question, according to defendant, is whether Savannah's killing was performed with aggravated cruelty. Defendant appears to argue that because Savannah was shot in the head and not hanged, starved, tortured, or burned alive, the act does not rise to the level of aggravated cruelty (defendant's brief, p. 30-31). In this case, where defendant also killed the only person who could clarifY the circumstances of Savannah's death, and it is impossible therefore to know the exact manner and execution of Savannah's death, we do know that defendant called his half-brother and was told that the best way to bury a body was to dig a hole, put the body in it, and find an animal to put on top of it (RA. 383-384). We also know that defendant had what appeared to be a bite mark on his wrist, which could indicate a struggle with Savannah (RA. 349). Animal Pathologist Dr. Ward 66 Stone conducted a necropsy on Savannah on July 30, 2008 (RA. 488). He found that Savannah had been shot five times in the head, and that, having been buried in cool damp clay, the well cared for, and well fed dog, had been dead for about two to three weeks (and possibly up to four weeks) (RA. 491-495). This placed the time of death around July 6, 2008, when defendant called Mr. Smith, and shows that defendant was unjustified in killing a healthy animal. When Martha's body was found buried beneath Savannah, the depraved manner of Savannah's death was further exhibited. Interestingly, defendant also concedes that he "abus[ed] [Savannah's] corpse" by shooting her multiple times in the head. In its weight of the evidence discussion, the Appellate Division held: Testimony from defendant's half brother about his advice to bury a human body beneath an animal makes it likely that defendant also killed the dog. One of defendant's friends testified that it looked like defendant had a dog bite on his wrist around the time that the victim disappeared. The bullets used to kill the victim and the dog were consistent with each other and with having been fired from a rifle located in the victim's camper. The wildlife pathologist who performed the necropsy testified that the dog had a full stomach and was in good health prior to death. This testimony dispelled the suggestion that the dog was put down because of illness, thus rendering the death unjustifiable. While defendant contends that the People failed to show "aggravated cruelty" as required by the statute, five shots to the head of a healthy dog - when anyone of those shots would have been fatal - qualifies as conduct 'carried out in an especially depraved or sadistic manner' (Agriculture and Markets Law 353-a); see People v Garcia, 29 AD3d 255, 261 ), lv denied 7 NY3d 879) . 67 Here, while circumstantial (since defendant killed the only possible witness), the evidence clearly supports the conclusion that Savannah was intentionally killed with no purpose in a depraved and sadistic manner. Defendant attempts to characterize defendant's actions as the "mere act of killing an animal" (defendant's brief, p. 31), that does not rise to the level of "aggravated cruelty." That characterization, however, downplays defendant's horrifically "depraved and sadistic" actions. Surely, killing a healthy dog by shooting it multiple times in the face for the purposes of burying it on top of its owner's body constitutes unjustified killing carried out in a "depraved or sadistic manner." Indeed, in People v Garcia (29 AD3d 255 [1st Dept 2006]), the Appellate Division upheld the defendant's conviction for Aggravated Cruelty to Animals where the defendant killed a child's pet goldfish by stomping on it. In that case, as here, the defendant argued that "because the fish's death was instantaneous, it was not accompanied by 'extreme physical pain' or accomplished with ' especial' depravity or sadism, and therefore the killing was not accomplished with any heightened level of cruelty." The Appellate Division rejected this claim, finding that, since the crime was established in "recognition of the correlation between violence against animals and subsequent violence against human beings ... it must be inferred that the Legislature's concern was with the state of mind of the 68 perpetrator rather than that of the victim." Garcia, 29 AD255 at 26l. Indeed, the lower court in Garcia found that While no evidence was presented at trial on the issue of whether or not Junior, the goldfish, suffered pain when crushed and killed by the defendant, this court can find no requirement either in the statutory scheme of the Agriculture and Markets Law or in the public policy of our state ... , indicating that the being which is the object of the statute's protection must necessarily experience pain to come within its purview People v Garcia, 3 Misc 3d 699, 707 (Sup Ct NY Co 2004).19 Defendant cites People v Degirogio, 36 AD3d 1007 (3d Dept 2007) as holding that "standing alone - - kicking a dog with boots; picking up and shaking a dog; throwing a dog down a flight of stairs; and banging a dog's head against a door - were not acts of aggravated cruelty" (defendant' s brief, p. 31). Contrary to defendant's statement, however, in Degiorgio, the Third Departrr1ent, (in holding that, taken together, the acts did constitute aggravated cruelty), found that, taken separately, the acts "might not" be sufficient. Again, however, defendant's actions here are, on their face, far more heinous than anyone of the acts in Degiorgio. In support of his argument, defendant relies upon the Governor's Memorandum in support of the enactment of Aggravated Cruelty to Animals, 19 Garcia's conviction was upheld on federal habeas review, see Garcia v Rivera, 2007 US Dist LEXIS 59722; 2007 WL 2325928, *47 (SDNY August 16, 2007), where the Southern District held that his claim was without merit because Garcia killed the goldfish in an "especially depraved or sadistic marmer." 69 which defendant describes as stating that Aggravated Cruelty to Animals was meant to provide "enhanced punishment for 'aggravated cruelty' that [the Governor] believed meant throwing animals from windows, using them for target practice, hanging, and starvation" (defendant's brief, p. 30). While those are certainly some examples of Aggravated Cruelty, defendant's adherence to those specific examples, misses the point of the statute and the memorandum. The memorandum clearly states that the bill's purpose is to "adequately punish those who prey on defenseless animals" with "gruesome acts" in light of "recent studies that reveal a correlation between violence against animals and future acts of violence against humans" (Govs Memo L 1999, ch 118). See also Garcia, 29 AD3d at 257; People v Boateng, 67 AD3d 505 (1st Dept 2009)("Aggravated cruelty to animals, represents the Legislature's recognition that man's inhumanity to man often begins with inhumanity to those creatures that have formed particularly close relationships with mankind")(internal quotations omitted). In this case, that correlation proved all too true, and defendant's conviction was supported by legally sufficient evidence. This Court should reject defendant's unpreserved claim. 70 POINT FOUR AS THE APPELLATE DIVISION FOUND, THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST FOR THE ASSIGNMENT OF NEW COUNSEL WAS A PROPER EXERCISE OF DISCRETION. A week before trial, the court received a handwritten letter, one paragraph in length, from defendant in which he requested new representation?O Although, given the conclusory nature of defendant's letter, the court was not required to even inquire, in response to defendant's letter, the court engaged in a colloquy with both counsel in defendant's presence. The court explained to defendant that it was concerned that he might prejudice himself on the record if he spoke without the advice of counsel, and defendant agreed. The court denied the request "at this point." Defendant remained silent for the duration of the proceeding and never raised the request again throughout the trial and sentencing. Under these circumstances, the court properly exercised its discretion in dealing with the request, and defendant failed to preserve any claim that the process prejudiced him 20 Defendant asserted that his attorney "is ineffective on all levels," and he "d[id]n't feel properly represented." He added that his attorney "[wa]s not ready for trial, he had discussed [defendant's] legal business with the COs on more than one occasion, he has not looked into anything that [defendant] asked him to that will help [his] defense, he doesn't listen to any information [he] g[a]ve him to help [his] defense. He only asked me to plead guilty everytime he comes to see me" (A. 307). 71 in any way. Cf People v Smith, 92 NY2d 516,518 (1998) ("defendant repeatedly requested new assigned counsel") . The Appellate Division found that the trial court, "did not deny defendant his right to counsel after he requested new counsel." The Appellate Division further held that, "defendant's letter to the court contained generalized complaints about counsel. The court received the letter less than a week prior to trial, so any substitution in this complicated case would have delayed the trial for months." As to defendant's contention that he was deprived of the opportunity to be heard, the Third Department found that defendant "agreed with the court's advice that he should remain silent to protect his interests," and concluded that "[ c ]onsidering the lack of factual support for defendant's complaints and the timing of his request, along with counsel's adequate pretrial performance, the court did not deprive defendant of his right to counsel" (A. 5). Certainly there is no dispute that, as defendant argues (defendant's brief, p. 37), under the Federal and New York State Constitutions, an indigent criminal defendant is guaranteed the right to counsel. US Const, 6th Am; Gideon v Wainwright, 372 US 335, 343 (1963); NY Const, Art 1, §6; People v Koch, 299 NY378, 381 (1949). A defendant may be entitled to new assigned counsel upon showing "good cause for substitution," such as conflict of interest or other irreconcilable conflict with counsel, but the ultimate determination whether to 72 substitute counsel is within the discretion of the trial judge. People v Medina, 44 NY2d 199, 207 (1978); see also People v Linares, 2 NY3d 507, 510 (2004). Accordingly, this Court's review is limited to whether there is evidence in the record indicating an abuse of discretion by the trial court in denying defendant's motion. See People v Porto, 16 NY3d 93,101 (2010) ("there is no evidence in the record indicating an abuse of discretion by the court in denying the motion for substitution of counsel"). In Porto, this Court reaffirmed the "minimal inquiry standard" of People v Sides (75 NY2d 822 ) employed when addressing a demand for new counsel. In Porto, this Court set forth the trial court's responsibilities, holding: a court's duty to consider such a motion [to substitute counsel] is invoked only where a defendant makes a 'seemingly serious request.' Therefore, it is incumbent upon a defendant to make specific factual allegations of 'serious complaints about counsel.' If such a showing is made, the court must make at least a 'minimal inquiry,' and discern meritorious complaints from disingenuous applications by inquiring as to the 'nature of the disagreement or its potential for resolution.' Upon such a review, counsel may be substituted only where 'good cause' is shown. This Court has enumerated several factors that should be weighed by a court in reviewing a motion for new counsel. 'In determining whether good cause exists, a trial court must consider the timing of the defendant's request, its effect on the progress of the case and whether present counsel will likely provide the defendant with meaningful assistance.' 73 Porto, 16 NY d3d at 99-100 (internal citations omitted). Porto also flatly rejected a "rule of law requiring a court to pose questions directly to every complaining defendant." Id. Porto reasserts a long line of cases in which this Court has required a showing of good cause beyond mere vague and conclusory allegations. In Linares (2 NY3d at 509), defendant's complaints "that his attorney was not providing him with documents and not acting in his best interests;" that counsel was urging him to plead guilty; that he could not trust his attorney, and; that counsel "never does anything in my behalf, never ever," were not held to constitute specific complaints establishing good cause entitling him to substitution. More recently, in People v Smith (18 NY3d 588, 591 ), this Court found that defendant had failed to show good cause for substitution of counsel where, "[pr]ior to jury selection, defendant indicated that his former defense counsel 'really botched up' ... was not 'going to represent [him] to the best of his ability.' Initially, defendant expressed that he and his attorney disagreed about how to proceed with pretrial motions. More specifically, he complained that counsel did not follow his request to renew a motion to dismiss the indictment based upon the testifying officers' failure to state their prior experience and training before the grand jury. . .. According to defendant, he did 'not feel comfort[ able] going to  trial with this man.'" The court, "[a]fter noting that the case [wa]s ready for trial, . 74 advised defendant that counsel was an able, competent and experienced criminal attorney .... Defendant however did not accept the court's decision and continued to express that he did not want to go to trial with present counsel. The court . .. explained that it would not assign new counsel to him without a reason." This Court found that the trial court had properly exercised its discretion in denying defendant's repeated request for new counsel because "[t]he inquiry revealed that defendant did not approve of the representation counsel sought to provide him despite counsel detailing that he had considered defendant's motions, had prepared for trial and had tried numerous observation sale cases, which have similar factual allegations and issues as defendant's case. The court noted that counsel was competent and likely to provide effective representation; the case was ready for trial; and defendant provided 'no reason' to substitute counsel for a second time." Smith at 593. Here, defendant's request was not "seemingly serious," particularly when compared to the detailed allegations in Smith as stated above. Indeed, his one paragraph letter, received only a week before trial, merely lists counsel's alleged failures in broad strokes ("counsel is ineffective on all levels. I don't feel properly represented. My public defender is not ready for trial, he has discussed my legal business with the CO's on more than one occasion, he has not looked into anything that I asked him to that will help my defense, he doesn't listen to any information I 75 give to him to help my defense. He only asks me to plead guilty everytime [sic] he comes to see me" [A. 307]). Defendant's generic allegations were also, as will be discussed more later, unsupported by the facts at that time because defense counsel had, at that time, worked vigorously on defendant's behalf pretrial (see infra, pp. 78-79). Moreover, in spite of defendant's failure to articulate anything more than conc1usory generalized objections to counsel's representation, the court summoned the attorneys and defendant to discuss the issue on the record on the following Monday, April 20, 2009 (A. 149). The People noted that the trial was just three days away and that a substitution of counsel at such a late date would produce a delay of month (A. 149-150). The People further attested to the diligence and skill of the assigned counsel, and observed that counsel had made a thorough omnibus motion seeking to suppress evidence against defendant, had secured a Huntley hearing and vigorously contested the People's evidence and legal positions, and concluded, "As far as my office is concerned, there is nothing ineffective which has taken place thus far in this case by the Public Defender's Office, and I would submit that there is absolutely no good reason to grant an adjournment of this matter to [defendant] to grant another attorney" (A. 150). When asked whether he wished to be heard, defense counsel initially attempted to defer to defendant, but subsequently replied, "Judge, [the People]'s 76 comments speak for themselves. It is your decision. You have witnessed me try cases, and, I mean, based on whatever knowledge you have and what you believe, I leave it up to the sound discretion of the Court" (A. 151). In concurring with the People's position, defense counsel thus agreed that there was no compelling reason for the court to appoint substitute counsel. Accordingly, defendant's claim that the court "deprived him of the right to be heard" (defendant's brief, p. 37) the record shows that such was simply not the case. After hearing from the People, and defense counsel's suggestion that defendant speak first, the following colloquy ensued: THE COURT: I don't know whether that would be appropriate without aid and assistance of counsel. I don't want to give him an open mike, quote, unquote, without advice of counsel because he may say something that may be prejudicial to this case, and I don't want him to blurt out or say something prejudicial to this case. Do you understand what I am saying, sir? THE DEFENDANT: Yes. THE COURT: We are at a very crucial stage of the proceeding here, and it's a time to remain silent, so I would prefer not giving you an opportunity to be heard on the issues raised by this for fear that you may prejudice yourself in some other way. Do you understand me? THE DEFENDANT: Yes. THE COURT: Do you agree with my conclusion in that regard? THE DEFENDANT: Yes. 77 THE COURT: All right, I just feel to give you an open opportunity to say something might prejudice a very important case to you and a case that I want to make sure is completed in the fairest manner as possible, and in being fair to you I feel I don't want to allow you to just stand up and speak, all right? THE DEFENDANT: Yes. (A. 150-151). Thus, the court heard from both the People and defense counsel, and only advised defendant against making any uncounseled statements on the record, out of concern that he might say something prejudicial to his own case. If defendant wished to be heard, he could have been - - he simply would have to have consulted with counsel about what he intended to say before he said it. He also could have disagreed with the court and explained his reasoning, but he did not. Instead, the record shows, defendant agreed with the court and, rather than making a statement with the advice of counsel, opted to remain silent. The court merely ensured that defendant did not say anything incriminating or otherwise contrary to his own interest, and thereby, protected defendant's interests and scrupulously upheld defendant's right to counsel. Defendant not only remained silent at that moment, but never raised his concerns again throughout the trial and sentencing. In short, "[b ]ecause defendant failed to proffer specific allegations of a seemingly serious request sufficient to warrant substitution of counsel and was indeed afforded an opportunity to be heard, it cannot be said that [the trial court] 78 abused its discretion in denying his request." People v Edwards, 946 NYS2d 269, 272 (3d Dept June 7, 2012); see also Porto, 16 NY3d at 100. The trial court thus appropriately exercised its discretion m denying defendant's request at that moment. 21 Furthermore, the record shows that counsel was effective, and provided meaningful assistance in every respect. Defense counsel accompanied defendant to and advised him during an interview with the New York State Police on August 14, 2008 (including advising defendant not to take a polygraph examination, which advice defendant ignored (RA. 20); he filed pretrial discovery demands and omnibus motions, and challenged the People's evidence (RA. 1-15); he made sufficient factual and legal allegations to persuade the court to conduct a Huntley hearing; he made supplemental arguments in writing urging suppression of defendant's contested statements (A. 17-20); and he met with defendant in jail to prepare his defense. At trial, he participated fully in jury selection (RA. 176-177, 180); he entered into evidentiary stipulations on defendant's behalf (RA. 179); he gave an opening statement (RA. 181-190); he challenged the People's witnesses at trial through rigorous cross-examination, and 21 Although defendant contends (defendant's brief, p. 36), that he made his request more than a week before trial, the record shows that it was neither received by the court nor relayed to the parties until Thursday, April 17, 2009, only a week before the trial began on April23 rd (A. 149, 307). Thus, his undue delay in seeking new assignment severely undermined the seriousness of his request. Medina, 44 NY2d at 207. 79 objected to the admission of the People's evidence (RA. 197, 202-210, 285); he made other objections that were sustained (RA. 233, 347-348); he proposed an alternate and competitive theory of the case which, had the jury credited it, would have exonerated defendant; he presented evidence and a witness on defendant's behalf (RA. 526, 527); and he gave a spirited closing argument (RA. 546-564). He also successfully objected to part of the court's proposed jury instructions, and requested that the jury be polled to ensure its unanimity as to the verdict on each count (RA. 544-545, 565). Again, it must be emphasized that defendant never renewed his application for a substitution of counsel once his initial demand was denied. Finally, defendant's failure to raise an ineffective or meaningful assistance of counsel claim in the instant appeal silently repudiates his nebulous and dilatory claims on the eve of trial. Thus, the court did not abuse its discretion in denying defendant's request to discharge defense counsel (see Porto, 16 NY3d at 100, 102), and the record establishes that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 ). Especially since the court's denial clearly left open the possibility of reconsideration as the trial progressed, but defendant never again raised the issue, the trial court properly exercised its discretion, the Appellate Division properly rejected the claim on direct appeal, and this Court should once again reject defendant's claim. 80 CONCLUSION For the foregoing reasons, the judgment appealed from should be affirmed in all respects. Dated: Albany, New York October 19,2012 81 Respectfully submitted, Hon. Terry J. Wilhelm GREENE COUNTY DISTRICT ATTORNEY Attorney for Respondent 411 Main Street Catskill, New York 12414 (518) 719-3590 BY:~SC,~ Hannah E.C. Moore NEW YORK PROSECUTORS TRAINING INSTITUTE, INC. 107 Columbia Street Albany, NY 12210 (518) 432-1100 Of Counsel '.