Opinion
1173 KA 15–00756
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Ryan J. MORROW, Defendant–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, inter alia, murder in the second degree ( Penal Law § 125.25[1] ), defendant contends that County Court erred in refusing to suppress statements that he made to police investigators as involuntarily made. We reject that contention. " ‘The voluntariness of a confession is to be determined by examining the totality of the circumstances surrounding the confession’ " ( People v. Deitz, 148 A.D.3d 1653, 1653, 50 N.Y.S.3d 726 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ; see People v. Buchanan, 136 A.D.3d 1293, 1293, 23 N.Y.S.3d 788 [4th Dept. 2016], lv denied 27 N.Y.3d 1129, 39 N.Y.S.3d 111, 61 N.E.3d 510 [2016] ). Here, the police investigators testified at the suppression hearing that defendant agreed to accompany them to the police station and was advised of his Miranda rights during the ride to the station. Thereafter, defendant agreed to speak to the investigators (see Deitz, 148 A.D.3d at 1653–1654, 50 N.Y.S.3d 726 ), and was not threatened or coerced to waive his Miranda rights (see Buchanan, 136 A.D.3d at 1293–1294, 23 N.Y.S.3d 788 ). The court credited the police investigators' testimony, and we afford deference to the court's resolution of issues of credibility (see People v. Dogan, 154 A.D.3d 1314, 1315, 62 N.Y.S.3d 667 [4th Dept. 2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ; Buchanan, 136 A.D.3d at 1294, 23 N.Y.S.3d 788 ). Moreover, we note that the video recordings of defendant's conversations with the police investigators, which were received in evidence at the hearing, are consistent with their testimony. Contrary to defendant's contention, his statements were not rendered involuntary by police deception because the deception "did not create a substantial risk that defendant might falsely incriminate himself" ( Deitz, 148 A.D.3d at 1654, 50 N.Y.S.3d 726 [internal quotation marks omitted]; see People v. Clyburn–Dawson, 128 A.D.3d 1350, 1351, 7 N.Y.S.3d 770 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ). In light of the totality of the circumstances, the People proved beyond a reasonable doubt that the challenged statements "were not products of coercion but rather were the result of a free and unconstrained choice by defendant" ( Buchanan, 136 A.D.3d at 1294, 23 N.Y.S.3d 788 [internal quotation marks omitted]; see People v. Thomas, 22 N.Y.3d 629, 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ).
Defendant failed to preserve for our review his contention that his plea was not knowingly, intelligently, or voluntarily entered inasmuch as he did not move to withdraw his guilty plea or vacate the judgment of conviction (see People v. Sheppard, 149 A.D.3d 1569, 1569, 53 N.Y.S.3d 443 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ; People v. Jones, 118 A.D.3d 1354, 1354, 987 N.Y.S.2d 749 [4th Dept. 2014], lv. denied 24 N.Y.3d 961, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014] ). Contrary to his contention, this case does not fall into the rare exception to the preservation doctrine inasmuch as nothing in the plea colloquy "casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; see Sheppard, 149 A.D.3d at 1569, 53 N.Y.S.3d 443 ).Defendant also failed to preserve for our review his challenge to the adequacy of the presentence report (see People v. Jones, 114 A.D.3d 1239, 1242, 980 N.Y.S.2d 670 [4th Dept. 2014], lv. denied 23 N.Y.3d 1038, 993 N.Y.S.2d 252, 17 N.E.3d 507 [2014], lv denied 25 N.Y.3d 1166, 15 N.Y.S.3d 298, 36 N.E.3d 101 [2015]; People v. Hayhurst, 108 A.D.3d 1233, 1234, 969 N.Y.S.2d 710 [4th Dept. 2013] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
The sentence is not unduly harsh or severe. We note, however, that the certificate of conviction and uniform sentence and commitment sheet incorrectly reflect that, under count two of the indictment, defendant was convicted of tampering with physical evidence under Penal Law § 215.40(1). Therefore, those documents must be amended to reflect that defendant was convicted under Penal Law § 215.40(2) (see People v. Gathers, 106 A.D.3d 1333, 1334, 965 N.Y.S.2d 246 [3d Dept. 2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ; see also People v. Green, 132 A.D.3d 1268, 1269, 17 N.Y.S.3d 807 [4th Dept. 2015], lv denied 27 N.Y.3d 1069, 38 N.Y.S.3d 840, 60 N.E.3d 1206 [2016], reconsideration denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ).