Opinion
995 KA 18-00609
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Ronald JONES, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the Onondaga County Court ( Thomas J. Miller, J.), rendered September 20, 2017. The judgment convicted defendant upon a plea of guilty of criminal sexual act in the third degree and endangering the welfare of a child (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal sexual act in the third degree ( Penal Law § 130.40 [2] ). Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid (see People v. Raghnal , 185 A.D.3d 1411, 1411, 127 N.Y.S.3d 665 [4th Dept. 2020] ; People v. Brown , 180 A.D.3d 1341, 1341, 115 N.Y.S.3d 734 [4th Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 19, 148 N.E.3d 483 [2020] ; see also People v. Thomas , 34 N.Y.3d 545, 561-563, 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] ).
Contrary to defendant's contention, County Court properly refused to suppress statements made by defendant during an interview with a police detective. After the detective read defendant his Miranda rights, defendant said, "I would feel more comfortable if I had a lawyer." We conclude that, taking into account the surrounding circumstances, including defendant's demeanor and manner of expression, defendant did not make an unequivocal invocation of his right to counsel (see People v. Glover , 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995] ; cf. People v. Porter , 9 N.Y.3d 966, 967, 848 N.Y.S.2d 583, 878 N.E.2d 998 [2007] ; People v. Kennard , 134 A.D.3d 1519, 1521, 23 N.Y.S.3d 522 [4th Dept. 2015] ), that "a reasonable officer ... would have understood only that [defendant] might be invoking the right to counsel," and that further communication and questioning by the detective was appropriate to clarify defendant's intention ( Davis v. United States , 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 [1994] ). The detective offered to read the Miranda rights to defendant again, but defendant stated that it was not necessary, then acknowledged that he was comfortable with his understanding of the rights and that he wanted to speak with the detective. Before beginning to ask defendant questions about the underlying criminal incident, the detective reminded defendant that he could have a lawyer if he asked for one and that he could stop talking to the detective at any time. During the rest of the interview, defendant did not ask for an attorney or indicate a desire to stop talking to the detective. Defendant's challenge to the court's order compelling him to provide a buccal swab for DNA analysis is forfeited by his guilty plea (see People v. Graham , 175 A.D.3d 1823, 1824, 109 N.Y.S.3d 541 [4th Dept. 2019], lv denied 34 N.Y.3d 1159, 120 N.Y.S.3d 258, 142 N.E.3d 1160 [2020] ; People v. King , 155 A.D.3d 1574, 1574, 63 N.Y.S.3d 286 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ; People v. Smith , 138 A.D.3d 1415, 1416, 29 N.Y.S.3d 726 [4th Dept. 2016] ). Finally, the sentence is not unduly harsh or severe.