Opinion
2014-05-8
The PEOPLE of the State of New York, Respondent, v. Stanley WHITTED, Appellant.
Aaron A. Louridas, Delmar, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Aaron A. Louridas, Delmar, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.
STEIN, J.
Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered December 14, 2010, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.
After being identified by a witness as the perpetrator of an attempted burglary, defendant was arrested and charged in a two-count indictment with attempted burglary in the second degree and criminal mischief in the fourth degree. Defendant moved to suppress the statement he gave to police while in custody and to exclude the pretrial identification by the witness. Following a combined Wade/ Huntley hearing, a Judicial Hearing Officer (Eidens, J.H.O.) determined that neither the statement provided to the police nor the pretrial identification was obtained improperly. County Court (Drago, J.) adopted those findings and denied the suppression motion. After a jury trial had commenced, defendant pleaded guilty to attempted burglary in the second degree, in full satisfaction of the indictment, and purportedly waived his right to appeal. County Court (Hoye, J.) thereafter sentenced defendant, as a second felony offender and in accord with the plea agreement, to a prison term of 4 1/2 years, plus five years of postrelease supervision. Defendant now appeals.
As a preliminary matter, we agree with defendant that his appeal waiver is invalid, as the record does not reflect that he was advised that the right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty or that he understood the rights he was waiving ( see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011];People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];People v. Bressard, 112 A.D.3d 988, 989, 976 N.Y.S.2d 302 [2013],lv. denied22 N.Y.3d 1137, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014];People v. Bouton, 107 A.D.3d 1035, 1036, 967 N.Y.S.2d 200 [2013],lv. denied21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146 [2013];People v. Gilbert, 106 A.D.3d 1133, 1133, 963 N.Y.S.2d 779 [2013] ). Accordingly, we cannot conclude that the waiver was knowingly, voluntarily and intelligently made.
Notwithstanding the invalidity of the appeal waiver, we affirm defendant's judgment of conviction. Initially, after reviewing the record before us—including the testimony from the suppression hearing and defendant's video-recorded interrogation—we conclude that County Court (Drago, J.) properly determined that defendant's intoxication at the time he gave his statement to the police did not “ ‘rise[ ] to the level of mania or to the level where ... defendant [was] unable to comprehend the meaning of his ... words' ” so as to render his statement involuntary ( People v. Baugh, 101 A.D.3d 1359, 1360, 956 N.Y.S.2d 313 [2012],lv. denied21 N.Y.3d 911, 966 N.Y.S.2d 362, 988 N.E.2d 891 [2013], quoting People v. Scott, 47 A.D.3d 1016, 1020, 849 N.Y.S.2d 335 [2008],lv. denied10 N.Y.3d 870, 860 N.Y.S.2d 496, 890 N.E.2d 259 [2008];see People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305 [1967],cert. denied389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157 [1967];People v. Dale, 115 A.D.3d 1002, 1003, 981 N.Y.S.2d 821 [2014] ). Police Detective Thomas Adach testified at the suppression hearing that defendant had an odor of alcohol and had apparently been drinking earlier in the day, and it is apparent from the video recording of the interrogation that defendant was intoxicated to some degree. However, the video recording supports Adach's further testimony that defendant responded appropriately to the questions posed to him and did not appear to be manic or confused. For example, at one point during the interrogation, when defendant was asked to produce a DNA sample, he refused and responded in a manner that indicated his understanding of his constitutional rights and the consequences of waiving them.
While it is also apparent from the video recording that defendant became increasingly angry and frustrated during the interrogation—at times cursing and shouting, both in and out of the presence of the officers—defendant's ability to communicate with the officers was not compromised.
The record also establishes that Adach properly read defendant his Miranda rights at the beginning of the interrogation, that defendant communicated his understanding of those rights, and he willingly spoke to Adach without requesting a lawyer. Thus, when we consider the totality of the circumstances ( see People v. Flemming, 101 A.D.3d 1483, 1484, 956 N.Y.S.2d 678 [2012],lv. denied21 N.Y.3d 942, 968 N.Y.S.2d 4, 990 N.E.2d 138 [2013];People v. Heesh, 94 A.D.3d 1159, 1160, 941 N.Y.S.2d 767 [2012],lv. denied19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012] ) and accord due deference to County Court's credibility determinations, we find that the People established beyond a reasonable doubt that defendant voluntarily waived his constitutional rights ( see People v. Dale, 115 A.D.3d at 1004, 981 N.Y.S.2d 821;People v. Kidd, 112 A.D.3d 994, 996–997, 976 N.Y.S.2d 309 [2013];People v. Mattis, 108 A.D.3d 872, 874, 969 N.Y.S.2d 581 [2013],lvs. denied22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013]22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013];People v. Baugh, 101 A.D.3d at 1360–1361, 956 N.Y.S.2d 313) and that County Court properly refused to suppress his statement to the police.
Nor are we persuaded by defendant's contention that his identification by a witness near the scene of the burglary was the product of an unreasonably suggestive showup procedure. The showup in question took place in front of the residence where the crime occurred within 45 minutes of when the police were contacted and, thus, was “ ‘conducted in close geographic and temporal proximity to the crime’ ” ( People v. Wicks, 73 A.D.3d 1233, 1235, 900 N.Y.S.2d 485 [2010],lv. denied15 N.Y.3d 857, 909 N.Y.S.2d 34, 935 N.E.2d 826 [2010], quoting People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003];see People v. Howard, 22 N.Y.3d 388, 402, 981 N.Y.S.2d 310, 4 N.E.3d 320 [2013];People v. Jones, 111 A.D.3d 1148, 1149, 975 N.Y.S.2d 484 [2013];People v. Toye, 107 A.D.3d 1149, 1150, 967 N.Y.S.2d 210 [2013],lv. denied22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014];People v. Rivera, 101 A.D.3d 1478, 1479, 957 N.Y.S.2d 423 [2012],lv. denied20 N.Y.3d 1103, 965 N.Y.S.2d 799, 988 N.E.2d 537;People v. Mathis, 60 A.D.3d 1144, 1145–1146, 874 N.Y.S.2d 627 [2009],lv. denied12 N.Y.3d 927, 884 N.Y.S.2d 708, 912 N.E.2d 1089 [2009] ).
In addition, the showup was reasonable under the circumstances. The record reflects that none of the police officers involved made any gestures or representations to the witness or to defendant to influence the procedure. The fact that defendant was brought to the scene in a police vehicle and exited therefrom immediately before being identified by the witness ( see People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654 [1991];People v. Starks, 37 A.D.3d 863, 865, 828 N.Y.S.2d 700 [2007] ) “did not render the procedure unduly suggestive or create a substantial likelihood of misidentification” ( People v. Robinson, 101 A.D.3d 1245, 1246, 956 N.Y.S.2d 239 [2012],lv. denied20 N.Y.3d 1103, 965 N.Y.S.2d 799, 988 N.E.2d 537 [2013];see People v. Wicks, 73 A.D.3d at 1235, 900 N.Y.S.2d 485;see also People v. Harris, 64 A.D.3d 883, 884, 883 N.Y.S.2d 621 [2009],lv. denied13 N.Y.3d 836, 890 N.Y.S.2d 452, 918 N.E.2d 967 [2009];People v. Mathis, 60 A.D.3d at 1146, 874 N.Y.S.2d 627;People v. Armstrong, 11 A.D.3d 721, 722, 783 N.Y.S.2d 134 [2004],lv. denied4 N.Y.3d 760, 792 N.Y.S.2d 4, 825 N.E.2d 136 [2005] ). Thus, County Court properly denied defendant's motion to suppress such identification.
We also note that the victim was unable to identify defendant during a similar showup conducted previously. Significantly, the other witness was not within earshot during that showup and did not speak with the victim prior to identifying defendant.
Defendant failed to preserve his claim that the People committed a Brady violation by failing to disclose the grand jury testimony and affidavit of the identifying witness prior to the Wade hearing, as he did not move to reopen the suppression hearing after receiving such testimony ( seeCPL 710.40[4]; People v. Graham, 283 A.D.2d 885, 888, 725 N.Y.S.2d 145 [2001],lv. denied96 N.Y.2d 940, 733 N.Y.S.2d 379, 759 N.E.2d 378 [2001];see also People v. Brummel, 103 A.D.3d 805, 806, 962 N.Y.S.2d 182 [2013],lv. denied21 N.Y.3d 941, 968 N.Y.S.2d 3, 990 N.E.2d 137 [2013] ). In any event, such claim is without merit as the testimony in question was probative of the weight to be accorded to the witness's identification, not to the suggestiveness of the showup procedure and, therefore, could not have impacted the decision to suppress the identification ( see People v. Clark, 88 N.Y.2d 552, 555, 647 N.Y.S.2d 479, 670 N.E.2d 980 [1996];People v. Flow, 99 A.D.3d 549, 550, 952 N.Y.S.2d 178 [2012],lv. denied20 N.Y.3d 1061, 962 N.Y.S.2d 612, 985 N.E.2d 922 [2013] ).
Defendant's challenge to the severity of his sentence is also unavailing. County Court (Hoye, J.) acknowledged defendant's mental health issues and history of substance abuse, and sentenced defendant in accord with the plea agreement to a significantly shorter term of incarceration than he could have received if convicted after trial. Considering defendant's extensive criminal record, and the record as a whole, we perceive no abuse of discretion or extraordinary circumstance warranting a reduction of the sentence in the interest of justice ( see People v. Crump, 107 A.D.3d 1046, 1047, 966 N.Y.S.2d 282 [2013],lv. denied21 N.Y.3d 1014, 971 N.Y.S.2d 497, 994 N.E.2d 393 [2013];People v. Briel, 36 A.D.3d 1081, 1082, 826 N.Y.S.2d 853 [2007],lv. denied8 N.Y.3d 919, 834 N.Y.S.2d 510, 866 N.E.2d 456 [2007];People v. Hill, 11 A.D.3d 817, 818, 783 N.Y.S.2d 145 [2004] ).
ORDERED that the judgment is affirmed.