Opinion
1040 KA 13-00648.
09-29-2017
The PEOPLE of the State of New York, Respondent, v. Gary GRAHAM, Defendant–Appellant.
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree ( Penal Law § 130.35 [2 ] ) and rape in the third degree (§ 130.25[2] ). Defendant contends that Supreme Court failed to make a minimal inquiry into his requests for new counsel, and that he showed good cause for substitution. We reject that contention. A defendant may be entitled to new assigned counsel "upon showing ‘good cause for a substitution,’ such as a conflict of interest or other irreconcilable conflict with counsel" ( People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). Where a defendant makes a "seemingly serious request[ ]" for new assigned counsel, the court is obligated to "make some minimal inquiry" ( id. at 824–825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; see People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; People v. Gibson, 126 A.D.3d 1300, 1301–1302, 6 N.Y.S.3d 198 ). Here, the record establishes that "the court afforded defendant the opportunity to express his objections concerning defense counsel, and the court thereafter reasonably concluded that defendant's objections were without merit" ( People v. Bethany, 144 A.D.3d 1666, 1669, 42 N.Y.S.3d 495, lv. denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 ).
We reject defendant's contention that the court erred in refusing to suppress the statements and the DNA sample that he gave to the police. We agree with the court that defendant was not in custody when he gave statements to the police and thus Miranda warnings were not required (see People v. McGuay, 120 A.D.3d 1566, 1567, 993 N.Y.S.2d 228, lv. denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 ; see generally People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 ). Defendant voluntarily drove himself to the police station, was not handcuffed or restrained in any way while at the station, was advised he could leave at any time, and was allowed to go home after only approximately half an hour of questioning (see People v. Brown, 111 A.D.3d 1385, 1385–1386, 975 N.Y.S.2d 293, lv. denied 22 N.Y.3d 1155, 984 N.Y.S.2d 638, 7 N.E.3d 1126 ). We further agree with the court that defendant voluntarily agreed to give a DNA sample (see People v. Parker, 133 A.D.3d 1300, 1300, 20 N.Y.S.3d 781, lv. denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128, reconsideration denied 28 N.Y.3d 1030, 45 N.Y.S.3d 381, 68 N.E.3d 110 ; People v. Dallas, 119 A.D.3d 1362, 1363, 989 N.Y.S.2d 206, lv. denied 24 N.Y.3d 1083, 1 N.Y.S.3d 9, 25 N.E.3d 346 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.