Opinion
121 KA 11–00794
03-16-2018
The PEOPLE of the State of New York, Respondent, v. Kenneth BARKSDALE, Defendant–Appellant.
WILLIAM G. PIXLEY, PITTSFORD, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
WILLIAM G. PIXLEY, PITTSFORD, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree ( Penal Law § 220.09[1] ), defendant contends that Supreme Court (Valentino, J.) erred in refusing to suppress statements he made to a police officer. We reject that contention. Defendant was arrested and taken to a police substation, where an officer began to read the Miranda warnings to defendant. When the officer asked defendant if he understood his rights, defendant replied " ‘[n]ope, nope, nope. Yeah, I've been through this since you were both in diapers.’ " When the officer then asked if he could continue the process, defendant indicated yes, and then waived his rights and indicated that he was willing to talk to the officer. It is well settled that the court's "determination that defendant did not unequivocally invoke his right to remain silent is ‘granted deference and will not be disturbed unless unsupported by the record’ " ( People v. Zacher , 97 A.D.3d 1101, 1101, 948 N.Y.S.2d 509 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 [2013] ; see People v. Smith , 140 A.D.3d 1774, 1775, 32 N.Y.S.3d 433 [4th Dept. 2016], lv denied 28 N.Y.3d 1127, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016] ). Here, the record fully supports the court's determination that defendant "waived his Miranda rights and did not make an unequivocal assertion of his right to remain silent at that time" People v. Young , 153 A.D.3d 1618, 1619, 61 N.Y.S.3d 752 [4th Dept. 2017] ; see People v. Ingram , 19 A.D.3d 101, 102, 795 N.Y.S.2d 592 [1st Dept. 2005], lv denied 5 N.Y.3d 806, 803 N.Y.S.2d 35, 836 N.E.2d 1158 [2005] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.