719 N.Y.S.2d 752 | N.Y. App. Div. | 2001
Appeal from a judgment of County Court of Washington County (Hemmett, J.), rendered May 22, 2000, convicting defendant upon his plea of guilty of the crimes of rape in the second degree and rape in the third degree.
In November 1999, an 11-count indictment was handed up against defendant charging him with numerous sex-related offenses stemming from his inappropriate contact with two nieces, ages 13 and 15, respectively. Following an unsuccessful motion to suppress oral and written statements to State Police Investigator Thomas Aiken, defendant pleaded guilty to one count of rape in the second degree and one count of rape in the third degree in satisfaction of the entire indictment. Sentenced to consecutive prison terms of 2V3 to 7 years and 1 to 3 years, respectively, he now appeals.
Upon our review of the Huntley hearing, we find that County Court properly denied defendant’s motion to suppress, there being sufficient evidence to support the court’s conclusion that defendant never unequivocally invoked his right to counsel
Aiken further testified that, upon voluntarily accompanying him to the barracks, defendant was advised of his Miranda rights, waived these rights in writing at 1:44 p.m. and agreed to speak to him about the accusations. Although initially denying the allegations, approximately 30 to 45 minutes into the interview defendant admitted to having sexual intercourse with both girls. According to Aiken, during the entire two-hour period that defendant was giving his statement (he signed a written copy of it at 3:38 p.m.), he never did or said anything to indicate that he wished to exercise his right to counsel. Notably, when defendant’s three-page written statement was completed, Aiken read it in its entirety to defendant twice; the second of these two readings was tape-recorded. This tape was admitted into evidence at the hearing after Aiken testified that it fairly and accurately depicted the final reading of defendant’s written statement and that nothing had been redacted from it (see, People v Barbour, 119 AD2d 584, lv denied 67 NY2d 1050; see also, People v McGee, 49 NY2d 48, cert denied sub nom. Waters v New York, 446 US 942). Upon our review of that tape, it does not contain any statement by defendant that he had invoked his right to counsel or that he wished to invoke this right. When questioned about the tape on cross-examination at the Huntley hearing, defendant claimed that a portion of it, wherein he stated that he chose to have an attorney present
In sharp contrast to Aiken’s testimony, defendant testified that he informed Aiken at the commencement of questioning at the State Police barracks that he wanted to speak to an attorney, that he made “repeated” attempts to contact a specific attorney in Aiken’s presence and that he told Aiken who he was attempting to call. Although the record reveals that defendant placed one, one-minute cellular telephone call to this attorney’s office at approximately 1:42 p.m. (just a few minutes before he signed the statement waiving his Miranda rights),
Indeed, approximately 40 minutes after he placed the call to this attorney’s office, defendant had a 16-minute cellular telephone conversation with his wife which was immediately followed by a nine-minute cellular telephone conversation with his father. Aiken testified that he overheard each of these conversations and did not hear defendant indicate at any time during either that he wanted an attorney. According to the testimony of defendant’s wife, defendant indicated to her during their conversation that he “would” contact the aforementioned attorney when their conversation terminated; the record supports County Court’s conclusion, however, that he never did so. She further testified that at no point during their conversation did she hear defendant make a request to Aiken for an attorney or to terminate their interview. Defendant’s father similarly testified that he did not hear defendant make a request to Aiken during their conversation to speak to an attorney.
In the face of this conflicting testimony, County Court specifi
Defendant’s remaining contention has been reviewed and rejected.
Cardona, P. J., Mercure, Spain and Rose, JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Washington County for further proceedings pursuant to CPL 460.50 (5).
. Significantly, defendant, who testified at the Huntley hearing, denied that there had been any discussion of an attorney at this particular time.
. Although defendant conceded on cross-examination that he signed the written statement, he claimed that the entire statement was false, that he never engaged in any of the conduct that he confessed to and that he never read the statement before signing it.
. Defendant testified that he spoke to this attorney’s secretary in Aiken’s presence and was informed that he was out of the office. Other than defendant’s claim that he had this conversation with the secretary, no other corroborating evidence was introduced to support it.