Opinion
2014-08-8
The PEOPLE of the State of New York, Respondent, v. Brian BROWN, Defendant–Appellant.
Jeremy D. Alexander, Utica, for Defendant–Appellant. Brian Brown, Defendant–Appellant pro se.
Jeremy D. Alexander, Utica, for Defendant–Appellant. Brian Brown, Defendant–Appellant pro se.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a jury trial of, inter alia, attempted aggravated murder (Penal Law §§ 110.00, 125.26 [1][a][i] ) and aggravated assault upon a police officer (§ 120.11), defendant contends that County Court erred in refusing to suppress his confession because it was obtained in violation of his right to counsel. More specifically, defendant contends that, after being advised of his Miranda rights, he invoked his right to counsel by stating to the police investigators, “I don't have an attorney” and “if I can't afford an attorney, will it make a difference?” We reject that contention. The statement “I don't have an attorney” does not constitute an unequivocal request for counsel ( see People v. Ward, 134 A.D.2d 544, 544–545, 521 N.Y.S.2d 307,lv. denied70 N.Y.2d 1012, 526 N.Y.S.2d 946, 521 N.E.2d 1089;see also People v. Cotton, 277 A.D.2d 461, 462, 715 N.Y.S.2d 763,lv. denied96 N.Y.2d 757, 725 N.Y.S.2d 283, 748 N.E.2d 1079), nor does a statement from a suspect that he or she cannot afford an attorney constitute such a request ( see People v. Mandrachio, 55 N.Y.2d 906, 907, 449 N.Y.S.2d 24, 433 N.E.2d 1272,cert. denied457 U.S. 1122, 102 S.Ct. 2939, 73 L.Ed.2d 1336). Similarly, the statement, “if I can't afford an attorney, will it make a difference?” was merely “an inquiry about whether or not [defendant] should contact an attorney[, which] does not, without more, constitute an unequivocal invocation of the right to counsel” ( People v. Hurd, 279 A.D.2d 892, 893, 719 N.Y.S.2d 752;see People v. Vaughan, 48 A.D.3d 1069, 1071, 850 N.Y.S.2d 735,lv. denied10 N.Y.3d 845, 859 N.Y.S.2d 404, 889 N.E.2d 91,cert. denied555 U.S. 910, 129 S.Ct. 252, 172 L.Ed.2d 190;People v. Williams, 286 A.D.2d 918, 919, 730 N.Y.S.2d 631,lv. denied97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370).
We reject defendant's further contention that his confession was involuntary “in the traditional, pre- Miranda sense.” There is no evidence in the record that defendant's confession was “obtained from him ... by the use or threatened use of physical force” by the police (CPL 60.45[2][a]; see People v. Kelly, 309 A.D.2d 1149, 1151, 765 N.Y.S.2d 115,lv. denied1 N.Y.3d 575, 775 N.Y.S.2d 791, 807 N.E.2d 904;cf. People v. Daniels, 117 A.D.3d 1573, 1574–1575, 986 N.Y.S.2d 731). Indeed,the DVD of defendant's interrogation shows a well-treated suspect who joked and laughed at times with the investigators, and who was afforded food, drink and opportunities for rest ( cf. People v. Guilford, 21 N.Y.3d 205, 209–213, 969 N.Y.S.2d 430, 991 N.E.2d 204).
Defendant's remaining contention with respect to the admissibility of his confession is that his waiver of Miranda rights was not voluntary, knowing and intelligent because one of the investigators told him that he “did not need an attorney.” Because defendant “failed to raise this specific contention at the hearing or in his motion papers, this issue is unpreserved for [our] review” ( People v. Grace, 245 A.D.2d 387, 388, 665 N.Y.S.2d 584,lv. denied91 N.Y.2d 941, 671 N.Y.S.2d 721, 694 N.E.2d 890;see People v. Tutt, 38 N.Y.2d 1011, 1012, 384 N.Y.S.2d 444, 348 N.E.2d 920;People v. Louisias, 29 A.D.3d 1017, 1018–1019, 815 N.Y.S.2d 727,lv. denied7 N.Y.3d 814, 822 N.Y.S.2d 489, 855 N.E.2d 805). In any event, we conclude that any error in failing to suppress the confession is harmless inasmuch as the proof of guilt is overwhelming and there is no reasonable possibility that the jury would have acquitted defendant if the confession had been suppressed ( see People v. Wardlaw, 18 A.D.3d 106, 109, 794 N.Y.S.2d 524,affd.6 N.Y.3d 556, 816 N.Y.S.2d 399, 849 N.E.2d 258;see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787). We note that, at the time of his arrest, defendant possessed the gun that was used to shoot the deputy sheriff and fired during the two bank robberies. Defendant also possessed more than $5,000 in cash. Moreover, defendant wrote a letter to the District Attorney while in jail, in which he stated, “The fact of the matter is I broke the law in Oneida County” and that “these crimes I committed [were] done out of love for my mother and desperation for a better life.” Finally, defendant matched the description of the person who robbed the banks and shot the deputy sheriff, and he was wearing the same type and color of clothing.
Defendant further contends that the evidence is legally insufficient to establish that he intended to kill the deputy sheriff, which is a necessary element of attempted aggravated murder. We reject that contention as well. “A defendant may be presumed to intend the natural and probable consequences of his actions” ( People v. Mahoney, 6 A.D.3d 1104, 1104, 776 N.Y.S.2d 402,lv. denied3 N.Y.3d 660, 782 N.Y.S.2d 702, 816 N.E.2d 575;see People v. Ford, 114 A.D.3d 1273, 1274, 980 N.Y.S.2d 219,lv. denied23 N.Y.3d 962, 988 N.Y.S.2d 569), and “[i]ntent may be inferred from conduct as well as the surrounding circumstances” ( People v. Steinberg, 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845;see People v. Kelly, 79 A.D.3d 1642, 1642, 913 N.Y.S.2d 846,lv. denied16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184). Here, defendant's intent to kill may be inferred from the fact that, with a loaded gun in his hand, he extended his arm directly toward the deputy sheriff and fired at least three shots, one of which struck the deputy sheriff in the foot. Viewing the evidence in the light most favorable to the People, as we must ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that there is a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion” that defendant possessed the intent to kill ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;see People v. Geddes, 49 A.D.3d 1255, 1256, 856 N.Y.S.2d 336,lv. denied10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252;People v. Sherry, 41 A.D.3d 1235, 1236, 837 N.Y.S.2d 805,lv. denied 9 N.Y.3d 926, 844 N.Y.S.2d 181, 875 N.E.2d 900). Moreover, viewing the evidence in light of the elements of the crime of attempted aggravated murder as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Although defendant testified that he intended only to scare the victim, “it was within the province of the jury to assess [his] credibility and reject [his] testimony” ( People v. Mercado, 113 A.D.3d 930, 932, 978 N.Y.S.2d 449).
We have reviewed defendant's remaining contentions, including those raised in his pro se supplemental brief, and conclude that they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.