Opinion
KA 02-02325.
December 31, 2003.
Appeal from a judgment of Ontario County Court (Harvey, J.), entered September 26, 2002, convicting defendant after of jury trial of, inter alia, criminal possession of a controlled substance in the third degree.
BONNIE BURGIO, WATERTOWN, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (THOMAS D. REH OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16). We reject the contention of defendant that County Court erred in denying his motion seeking to suppress statements made to police after he was given Miranda warnings. Defendant stated, "you guys cost me some money tonight" and, when asked by police what he meant by that statement, defendant told police that he intended to sell the marihuana and crack cocaine found in his possession at a nearby bar and that he expected to receive a total of $200 from the sales. Although the police witness testified that he believed that defendant was impaired by drugs when he made those statements, we conclude that the evidence presented at the suppression hearing "establishes that defendant `was not intoxicated to such a degree that he was incapable of voluntarily, knowingly, and intelligently waiving his Miranda rights'" ( People v. Johns, 288 A.D.2d 848, 848, lv denied 97 N.Y.2d 705).
Defendant's contention that the court erred in failing to have the voir dire recorded is not properly before us because defense counsel expressly waived the recording of the voir dire ( see People v. Collins, 288 A.D.2d 860, 861, lv denied 97 N.Y.2d 752; cf. People v. Vasquez, 89 N.Y.2d 521, 534). Although a "single, substantial error by counsel [may] so seriously compromise a defendant's right to a fair trial" that the defendant is thereby deprived of effective assistance of counsel, we cannot agree with the further contention of defendant that defense counsel's waiver herein constitutes ineffective representation ( People v. Hobot, 84 N.Y.2d 1021, 1022). The court's questions to the prospective jurors were recorded, and defense counsel limited the waiver by requesting that any objection be recorded. We have reviewed defendant's remaining contention and conclude that it is without merit.