Opinion
384 3344/12 4705/12.
03-03-2016
The PEOPLE of the State of New York, Respondent, v. Patrick ARCHER, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered June 25, 2103, as amended July 12 and August 1, 2013, convicting defendant, upon his pleas of guilty, of two counts of driving while intoxicated as a felony, and sentencing him to concurrent terms of 2? to 7 years and 1 to 3 years, respectively, unanimously affirmed.
The court properly denied defendant's motion to suppress statements he made to the police. The first statement did not require Miranda warnings, because defendant, who was detained during a traffic stop, was not in custody for Miranda purposes (see Berkemer v. McCarty, 468 U.S. 420, 436–437, 104 S.Ct. 3138, 82 L.Ed.2d 317 1984; People v. Bennett, 70 N.Y.2d 891, 524 N.Y.S.2d 378, 519 N.E.2d 289 1987 ), and because the questioning was merely investigatory in any event (see People v. Huffman, 41 N.Y.2d 29, 33–34, 390 N.Y.S.2d 843, 359 N.E.2d 353 1976 ). The subsequent challenged statement, although made while defendant was in custody, was spontaneous and not the result of interrogation (see Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 1980 ).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 1988 ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 1998; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 1984 ).
We perceive no basis for reducing the sentence or directing that it run concurrently with defendant's Queens County sentence.
TOM, J.P., SAXE, RICHTER, KAPNICK, JJ., concur.