Opinion
888 KA 12-01775
09-26-2014
The PEOPLE of the State of New York, Respondent, v. Ronald P. McGUAY, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. David W. Foley, District Attorney, Mayville (Patrick E. Swanson of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
David W. Foley, District Attorney, Mayville (Patrick E. Swanson of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him, upon his plea of guilty, of course of sexual conduct against a child in the second degree (Penal Law § 130.80[1][a] ), defendant contends that he was deprived of his constitutional right to present a defense because County Court denied his request to serve a late notice of intent to present psychiatric evidence (see CPL 250.10[2] ). By pleading guilty, however, defendant forfeited his right to challenge the court's denial of his motion (see People v. Di Donato, 87 N.Y.2d 992, 993, 642 N.Y.S.2d 616, 665 N.E.2d 186 ). For the same reason, defendant also forfeited his right to challenge the court's denial of his request for the appointment of a special prosecutor (see generally People v.
Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 ).
We reject defendant's contention that the court erred in denying his motion to suppress incriminating statements he made to law enforcement officials. As the court properly determined, defendant was not in custody when he made the statements, and thus the police were not required to advise defendant of his Miranda rights (see generally People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 ; People v. Berg, 92 N.Y.2d 701, 704, 685 N.Y.S.2d 906, 708 N.E.2d 979 ; People v. Beard, 1 A.D.3d 886, 886, 767 N.Y.S.2d 730, lv. denied 1 N.Y.3d 624, 777 N.Y.S.2d 23, 808 N.E.2d 1282 ). The evidence at the Huntley hearing establishes that defendant voluntarily accompanied the police to the station for both interviews, he was not restrained in any way during either interview, and he was allowed to go home at the conclusion of the interviews. Moreover, defendant was specifically advised by one of the investigators that he was free to leave at anytime. In our view, a reasonable person in defendant's position who was innocent of any crime would not have believed that he or she was in custody (see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 ; People v. Lunderman, 19 A.D.3d 1067, 1068, 796 N.Y.S.2d 481, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 ).
Although defendant contends that his plea was involuntarily entered, he failed to preserve his contention for our review inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction (see People v. Cubi, 104 A.D.3d 1225, 1226, 960 N.Y.S.2d 585, lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1277 ), and the narrow exception to the preservation rule does not apply because defendant said nothing during the plea colloquy that “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 ; see People v. Hall, 119 A.D.3d 1349, 1349, 990 N.Y.S.2d 384 ).
We have reviewed defendant's remaining contentions and conclude that they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.