Opinion
298 KA 16–00849
03-16-2018
The PEOPLE of the State of New York, Respondent, v. Emmanuel L. JENKINS, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, three counts of predatory sexual assault ( Penal Law § 130.95[2] ) and one count of rape in the first degree (§ 130.35[1] ). We reject his contention that Supreme Court erred in refusing to suppress his statements to the police. The evidence presented at the suppression hearing, which included a video recording of the police interrogation at issue, demonstrated that defendant was informed of his Miranda rights, that he understood those rights, and that he was not under duress or undue influence when he made the challenged statements (see People v. DeAngelo, 136 A.D.3d 1119, 1120, 25 N.Y.S.3d 405 [3d Dept. 2016] ; see also People v. Rodwell, 122 A.D.3d 1065, 1067, 996 N.Y.S.2d 398 [3d Dept. 2014], lv denied 25 N.Y.3d 1170, 15 N.Y.S.3d 302, 36 N.E.3d 105 [2015] ). The tactics used by the police during the interrogation "did not overbear defendant's will or create a substantial risk that he would falsely incriminate himself" ( People v. Tompkins, 107 A.D.3d 1037, 1040, 966 N.Y.S.2d 605 [3d Dept. 2013], lv denied 22 N.Y.3d 1044, 981 N.Y.S.2d 377, 4 N.E.3d 389 [2013] ). Thus, we conclude that the People established that defendant validly waived his Miranda rights (see generally People v. Knapp, 124 A.D.3d 36, 41, 995 N.Y.S.2d 869 [4th Dept. 2014] ).Defendant did not object to the court's ultimate Sandoval ruling, and thus he failed to preserve for our review his contention that the court's ruling constitutes an abuse of discretion (see People v. Huitt, 149 A.D.3d 1481, 1482, 52 N.Y.S.3d 597 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ). Defendant also failed to preserve for our review his contention that the photo array identification was unduly suggestive because he failed to raise at the Wade hearing the specific grounds that he now raises on appeal (see People v. Evans, 137 A.D.3d 1683, 1683, 28 N.Y.S.3d 199 [4th Dept. 2016], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016] ). In any event, those contentions lack merit. Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.