Opinion
994 KA 15–01452
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Mark LEE, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, 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 criminal solicitation in the fourth degree ( Penal Law § 100.05 ). As the People correctly concede, defendant's waiver of the right to appeal is invalid. County Court failed to conduct an adequate colloquy " ‘to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ " ( People v. Brown, 296 A.D.2d 860, 860, 745 N.Y.S.2d 368 [4th Dept. 2002], lv denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002] ), and "there is no basis upon which to conclude that the court ensured ‘that ... defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Jones, 107 A.D.3d 1589, 1590, 966 N.Y.S.2d 724 [4th Dept. 2013], lv denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013], quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
We reject defendant's contention that the court erred in refusing to suppress statements that he made to the police. The court credited the testimony of the police officer and determined that, after validly waiving his Miranda rights, defendant voluntarily made statements to the police. "[T]he court's determination to credit the testimony of the police officer at the suppression hearing is entitled to great deference, and we perceive no reason to disturb that credibility determination" ( People v. Woods, 303 A.D.2d 1031, 1031, 759 N.Y.S.2d 824 [4th Dept. 2003] ; see also People v. Clark, 136 A.D.3d 1367, 1368, 25 N.Y.S.3d 485 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 [2016] ).
Contrary to defendant's related contention, it is well settled that the failure to record his interrogation electronically does not constitute a denial of due process, and he therefore was not entitled to suppression of his statements on that ground (see People v. Kunz, 31 A.D.3d 1191, 1191, 817 N.Y.S.2d 824 [4th Dept. 2006], lv denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144 [2006] ; see generally People v. McMillon, 77 A.D.3d 1375, 1375, 909 N.Y.S.2d 267 [4th Dept. 2010], lv denied 16 N.Y.3d 897, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011] ; People v. Jarvis, 60 A.D.3d 1478, 1479, 876 N.Y.S.2d 592 [4th Dept. 2009], lv denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 [2009] ).
We have reviewed defendant's remaining contentions and conclude that they lack merit.