People v. BalkumPeople v. Balkum
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, attempted robbery in the first degree (
We nevertheless reject the contention of defendant in appeal No. 1 that the court erred in refusing to suppress evidence obtained as a result of an allegedly unlawful seizure of his person. Contrary to defendant‘s contention, “at the time the police forcibly detained defendant, they had [a] reasonable suspicion . . . that he was involved in the robbery and thus were entitled to detain him for purposes of a showup identification procedure” (People v Martinez, 39 AD3d 1159, 1160 [2007], lv denied 9 NY3d 867 [2007]). Within three to five minutes of the robbery, a police officer observed defendant approximately one block from the scene, and he generally matched the description provided by the victim and broadcast over the police radio. “Although defendant did not ‘perfectly match’ the victim‘s de
We reject the contention of defendant in appeal No. 2 that the court erred in refusing to suppress his statement to the police. Contrary to the contention of defendant, we conclude that he did not unequivocally invoke his right to counsel before his custodial interrogation began.
It is well settled that “once a defendant in custody invokes his [or her] right to counsel . . . a subsequent waiver of rights outside the presence of [defense] counsel cannot be given legal effect” (People v Cunningham, 49 NY2d 203, 210 [1980]; see People v Ramos, 99 NY2d 27, 33 n 3 [2002]; People v West, 81 NY2d 370, 373-375 [1993]). Here, however, defendant did not make an unequivocal request for an attorney to represent him on the charges for which he was in custody. At the time he was taken into custody, defendant had an attorney to represent him on the unrelated charges that are at issue in appeal No. 1. At the police station, defendant mentioned to an officer that he had an appointment with his attorney that morning, and he asked that officer if he could call the attorney. The officer told defendant that he would have to wait, and defendant never mentioned the attorney again during his subsequent interviews with police investigators.
“Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant‘s demeanor, manner of expression and the particular words found to have been used by the defendant” (People v Glover, 87 NY2d 838, 839 [1995]). In this case, when defendant mentioned his attorney, he was not being questioned and his request to call the attorney was made in the context of attending a scheduled appointment with that attorney concerning unrelated charges. Indeed, defendant‘s reason for calling the attorney could have been to cancel that appointment (see People v Ramirez, 59 AD3d 206 [2009], lv denied 12 NY3d 858 [2009]; see also People v Mitchell, 2 NY3d 272, 276 [2004];
Contrary to the further contention of defendant in appeal No. 2, the police did not improperly capitalize on his concern for his pregnant girlfriend. ” ‘[I]t is not an improper tactic for police to capitalize on a defendant‘s sense of shame or reluctance to involve his family in a pending investigation absent circumstances [that] create a substantial risk that a defendant might falsely incriminate himself’ ” (People v Mateo, 2 NY3d 383, 415-416 [2004], cert denied 542 US 946 [2004]; see People v Young, 197 AD2d 874 [1993], lv denied 82 NY2d 854 [1993]). Here, there is no evidence in the record of the suppression hearing that the police promised “not to arrest defendant‘s girlfriend if” defendant “talked” (People v Keene, 148 AD2d 977, 978 [1989]; cf. People v Helstrom, 50 AD2d 685 [1975], affd 40 NY2d 914 [1976]), and there were no other circumstances creating a substantial risk that defendant would falsely incriminate himself (see
SMITH, J.P., CENTRA, FAHEY AND PINE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v WALTER BALKUM, Appellant. (Appeal No. 2.) [896 NYS2d 919]—Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), rendered February 17, 2004. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree (three counts) and grand larceny in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Same memorandum as in People v Balkum (71 AD3d 1594 [2010]). Present—Smith, J.P., Centra, Fahey and Pine, JJ.