Opinion
No. 68
10-24-2019
The PEOPLE of the State of New York, Respondent, v. Michael CUBERO, Appellant. State of New York, Intervenor-Respondent.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed.
It is undisputed that defendant failed to preserve for our review his contention that Executive Law § 552 violates the State Constitution (see CPL 470.05[2] ; People v. Davidson, 27 N.Y.3d 1083, 1086, 36 N.Y.S.3d 54, 55 N.E.3d 1027 [2016] ). The Appellate Division declined to exercise its power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), and we cannot reach that discretionary decision (see CPL 470.35[1] ). Defendant's further contention that he was denied meaningful representation is better addressed in a motion pursuant to CPL article 440 (see CPL 440.10[1][f] ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).
Defendant's additional contention that his statements to investigators should have been suppressed as involuntary presents a mixed question of law and fact (see Matter of Jimmy D., 15 N.Y.3d 417, 423, 912 N.Y.S.2d 537, 938 N.E.2d 970 [2010] ). Inasmuch as there is record support for the determination of the suppression court that those statements were voluntary, that issue is beyond further review by this Court (see Matter of Luis P., 32 N.Y.3d 1165, 1166, 93 N.Y.S.3d 255, 117 N.E.3d 814 [2018] ).
RIVERA, J. (concurring).
I agree the Appellate Division should be affirmed and join the majority's analysis with one exception. In my view, whether the Appellate Division may remit to create a record that it deems necessary to reach defendant's unpreserved claim presents a question of law reviewable in this appeal ( CPL 470.35[1] ). On the merits, I perceive no error in the analysis below warranting reversal (see CPL 470.10 ; 470.15[3][c], [6][a]; 470.20).
Judges Stein, Fahey, Garcia, Wilson and Feinman concur; Judge Rivera concurs in result in an opinion; Chief Judge DiFiore taking no part.
Order affirmed, in a memorandum.