Opinion
630 KA 19-00781
07-09-2021
The PEOPLE of the State of New York, Respondent, v. Patrick POTTER, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree ( Penal Law § 130.35 [1] ). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his contention that County Court erred in refusing to suppress a written statement that he provided to the police (see generally People v. Alls , 187 A.D.3d 1515, 1515, 129 N.Y.S.3d 881 [4th Dept. 2020] ), that contention is not preserved for our review because defendant did not raise the particular ground advanced on appeal either in his omnibus motion papers or at the suppression hearing (see generally People v. Panton , 27 N.Y.3d 1144, 1144-1145, 37 N.Y.S.3d 58, 57 N.E.3d 1095 [2016] ; People v. Ricks , 49 A.D.3d 1265, 1266, 856 N.Y.S.2d 346 [4th Dept. 2008], lv denied 10 N.Y.3d 869, 860 N.Y.S.2d 495, 890 N.E.2d 258 [2008], reconsideration denied 11 N.Y.3d 740, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008] ). In any event, that contention lacks merit. Although defendant contends that the Miranda warnings provided to him before he spoke to the police and signed his written statement were insufficient because he was not specifically advised of his right to have counsel present during questioning (see People v. Hutchinson , 59 N.Y.2d 923, 924, 466 N.Y.S.2d 294, 453 N.E.2d 523 [1983] ), the testimony and other evidence admitted at the hearing established that proper Miranda warnings were provided (cf. id. at 924-925, 466 N.Y.S.2d 294, 453 N.E.2d 523 ).