People v. Dehmler

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NEAL DEHMLER, Appellant

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 30, 1992

188 A.D.2d 1056 (N.Y. App. Div. 1992)

591 N.Y.S.2d 918

Opinion

December 30, 1992

Appeal from the Ontario County Court, Harvey, J.

Present — Denman, P.J., Pine, Balio, Fallon and Doerr, JJ.

Judgment unanimously affirmed. Memorandum: On appeal from a judgment of conviction entered upon defendant's plea of guilty during the course of the trial, defendant contends that County Court erred by denying his motion to suppress a pretrial statement (see, CPL 710.70). Defendant's contention is without merit. There is sufficient evidence in the record of the Huntley hearing (see, People v Huntley, 15 N.Y.2d 72) to support the suppression court's finding that the right to counsel did not attach. Under the circumstances, defendant's inquiry "can I call a lawyer?" did not unequivocally inform police of his intention to retain counsel (see, People v Hicks, 69 N.Y.2d 969, 970, rearg denied 70 N.Y.2d 796; People v Ashraf, 186 A.D.2d 1057). Although police aborted the polygraph examination to which defendant voluntarily submitted after the statement was made, defendant subsequently told sheriff's investigators that he was not asking for an attorney but only asking whether he was allowed to contact one. According appropriate weight to the determination of the suppression court (see, People v Prochilo, 41 N.Y.2d 759, 761), we conclude that its resolution of the conflicting inferences presented by defendant's inquiry finds support in the record (see, People v Boone, 22 N.Y.2d 476, 483, cert denied sub nom. Brandon v New York, 393 U.S. 991). We discern no reason to disturb it.

The sentence imposed as a result of the plea agreement entered into during trial was neither harsh nor excessive. By his plea of guilty, defendant forfeited any claim that he was prejudiced by error committed during the truncated trial (see, People v Taylor, 65 N.Y.2d 1, 7; People v Lynn, 28 N.Y.2d 196, 202; People v Green, 146 A.D.2d 281, 283-284, affd 75 N.Y.2d 902, cert denied 498 U.S. 860).