Opinion
799 KA 17-01700
10-02-2020
The PEOPLE of the State of New York, Respondent, v. Marcell BROOKS, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of assault in the first degree ( Penal Law § 120.10 [3] ), defendant contends and the People correctly concede that his waiver of the right to appeal is invalid because Supreme Court "mischaracterized it as an ‘absolute bar’ to the taking of an appeal" ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ). We note that the better practice is for the court to use the Model Colloquy, which "neatly synthesizes ... the governing principles" ( id. [internal quotation marks omitted] ). Nevertheless, we reject defendant's contention that the court erred in refusing to suppress his written statement to the police. It is well settled that a statement given freely and voluntarily is admissible in evidence (see Miranda v Arizona , 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] ). Here, we conclude that defendant's statement was not the product of custodial interrogation because a reasonable person, innocent of any crime, would not have thought that he or she was in police custody (see People v. Yukl , 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ; People v. Hernandez , 181 A.D.3d 530, 530-531, 122 N.Y.S.3d 11 [1st Dept. 2020], lv denied 35 N.Y.3d 1066, 129 N.Y.S.3d 376, 152 N.E.3d 1178 [2020] ; People v. Bell-Scott , 162 A.D.3d 1558, 1559, 78 N.Y.S.3d 846 [4th Dept. 2018], lv denied 32 N.Y.3d 1169, 97 N.Y.S.3d 614, 121 N.E.3d 242 [2019] ). The Huntley hearing testimony established that defendant entered the police station of his own accord without being accompanied by a police officer and waited in the lobby for a detective to arrive. He was not handcuffed, nor was he subjected to accusatory questioning.
Defendant further contends that, inasmuch as the record of the plea colloquy does not establish that he understood the plea colloquy or the consequences of the plea, the court abused its discretion in denying that part of his motion seeking to withdraw his plea on the ground of involuntariness. Defendant, however, "failed to preserve his contention for our review by failing to move to withdraw his guilty plea or to vacate the judgment of conviction on that ground" ( People v. Lawrence , 118 A.D.3d 1501, 1501, 988 N.Y.S.2d 384 [4th Dept. 2014], lv denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 [2015] ). Furthermore, the exception to the preservation doctrine does not apply because this is not one of those rare cases in which "defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). To the extent that defendant contends that he was deprived of a reasonable opportunity to advance his argument in support of his request to withdraw the guilty plea, we reject his contention. The court properly denied the motion without any inquiry because defendant's affidavit in support of his motion was conclusory, and thus the motion was "patently insufficient on its face" ( People v. Mitchell , 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ; cf. People v. Henderson , 137 A.D.3d 1670, 1671, 28 N.Y.S.3d 198 [4th Dept. 2016] ).
Finally, the sentence is not unduly harsh or severe.