Opinion
October 26, 1992
Appeal from the County Court, Suffolk County (Weissman, J.).
Ordered that the judgment is affirmed.
It is well established that the question of whether a defendant has effectively waived the Miranda rights must be determined on "`the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused'" (North Carolina v Butler, 441 U.S. 369, 374-375, quoting from Johnson v Zerbst, 304 U.S. 458, 464; People v Giano, 143 A.D.2d 1040, 1041). Here, the uncontradicted testimony of a police detective established that the defendant had made an informed decision to speak, when he told the officer "in essence" that he understood his rights, and that he was willing to talk without a lawyer present because he had done nothing wrong (see, People v Giano, supra; People v Montero, 118 A.D.2d 811; People v Harris, 115 A.D.2d 619; People v Rooney, 82 A.D.2d 840; People v Norris, 75 A.D.2d 650). Moreover, in addition to the defendant expressly indicating that he understood his rights and waived them, the defendant had an extensive history of arrests, and therefore may be presumed to have been familiar with his rights from his considerable previous exposure to the criminal justice system (see, People v Harris, supra; People v Norris, supra). The hearing court's finding of a knowing and intelligent waiver is therefore fully supported by the record and is entitled to "due deference" by this Court (People v Prochilo, 41 N.Y.2d 759; see, People v Hernandez, 135 A.D.2d 732; People v Armstead, 98 A.D.2d 726).
There is no merit to the defendant's contention that the hearing court should have inquired into the possibility that he had been too intoxicated to have the intent to commit burglary in the second degree. This recent claim of a nonjurisdictional defect is not preserved for appellate review, because at no time did the defendant seek to withdraw his guilty plea or vacate the judgment on this ground (see, People v Pellegrino, 60 N.Y.2d 636; People v Coluccio, 170 A.D.2d 523). Indeed, the defendant himself never told the court that he had been intoxicated at the time of the crime (cf., People v Quiles, 72 A.D.2d 610). In any event, the defendant gave a detailed recitation of the circumstances of the crime, including the fact that he had pushed his way into the victim's house with the "intent" to "steal" his money — which adequately made out all of the elements of attempted burglary in the second degree (see, People v Betheny, 147 A.D.2d 488). Mangano, P.J., Sullivan, O'Brien, Ritter and Pizzuto, JJ., concur.