Opinion
October 1, 1999
Appeal from Judgment of Onondaga County Court, Burke, J. — Murder, 2nd Degree.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). We reject the contention of defendant that he was denied effective assistance of counsel. Although defense counsel failed to move to withdraw defendant's prior guilty plea, evidence of defendant's conduct underlying the crimes to which defendant pleaded guilty, i.e., that defendant had forged checks drawn on the account of the victim, would have been admissible as evidence of prior uncharged crimes in any event, because it was relevant on the issue of motive (see, People v. Ventimiglia, 52 N.Y.2d 350, 359). In addition, defense counsel's failure to make a pretrial motion to dismiss the indictment pursuant to CPL 30.20 is not tantamount to ineffective assistance. In any event, County Court properly denied defendant's CPL 30.20 motion made following trial because defendant had failed to demonstrate prejudice resulting from the 31-month period of preindictment delay (see, People v. Quiroz, 192 A.D.2d 730, lv denied 81 N.Y.2d 1078). "[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation," establish that defendant received effective assistance of counsel (People v. Baldi, 54 N.Y.2d 137, 147).
Defendant's motion to suppress statements made to police officers was properly denied. Defendant was given Miranda warnings, waived his rights, and agreed to speak to officers. He was provided with food and beverages, and was allowed to use the restroom and smoke cigarettes. There were several breaks in the interrogation (see, People v. Towndrow, 236 A.D.2d 821, 822, lv denied 89 N.Y.2d 1016). The length of the interrogation, approximately 13 hours, is not, in itself, determinative of the voluntariness of the statements (see, People v. Guinta, 162 A.D.2d 970, lv denied 76 N.Y.2d 857).
Assuming, arguendo, that the court erred in denying defendant's challenge for cause with respect to several jurors, we conclude that the error does not require reversal because the court offered defendant additional peremptory challenges, the last of which defendant declined (see, CPL 270.20; cf., People v. McFadden, 244 A.D.2d 887, 887-888). The conviction is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). We have examined defendant's remaining contentions and conclude that they lack merit.
PRESENT: LAWTON, J. P., HAYES, PIGOTT, JR., HURLBUTT AND SCUDDER, JJ.