People v. Tenace
682 N.Y.S.2d 279
N.Y. App. Div.
1998
Check Treatment
Graffeo, J.

Appeal from a judgment of the County Court of Albany County (Rosen, J.), rendered December 3, 1996, convicting defendant upon his ’ plea of guilty of the crimes of murder in the second degree (two counts) and robbery in the first degree (two counts).

On December 17, 1993 police investigators entered a residence located at 1 Plant Place in the Town of Colonie, Albany County, after receiving a suspicious telephone call. The victim of a fatal stabbing, later identified as Cheryl Knapp, was discovered in the kitchen, along with a business card belonging to defendant which was found near the telephone. Thereafter, Cоlonie Police officers located and questioned defendant regarding the homicide. After being advised of his Miranda rights, defendant indicated that he had been at the Knapp residence two days earlier for business purposes but was not involved in the homicide. A search warrant was obtained for a storage facility rented by defendant’s mother and upon execution of the warrant, kitchen knives which may have been used in the homicide were recovеred. After learning that defendant had left Albany County, the Colonie Police issued a nationwide computer notification requesting assistance from othеr law enforcement agencies in the apprehension of defendant.

The police in Toledo, Ohio, notified the Colonie Police on *929January 31, 1994 that it had arrested defendant in connection with an Ohio homicidе. Three Colonie Police officers were dispatched to Toledo to question defendant and, upon arrival, they were advised that defendаnt had confessed to the homicide of a 76-year-old victim after being provided with Miranda warnings. The Colonie officers re-read defendant his Miranda rights and questioned him with respect to the Knapp murder. Defendant agreed to speak to the officers, ‍​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​​​‌​​​‌‌‌‌​​‌‌​​​​‌‍signed a waiver of rights form and confessed to stabbing Knapp with a kitchen knife.

Defendant was charged with three cоunts of murder in the second degree and two counts of robbery in the first degree. Prior to trial, County Court denied defendant’s motion to suppress his confession. At thе conclusion of a Sandoval hearing, the court permitted the People to inquire of defendant at trial whether he was convicted of aggravated murder in Ohio, but precluded the prosecutor from introducing evidence of the underlying facts of the crime or the sentence of death imposed. When thе trial commenced, defendant refused to proceed with his assigned counsel and decided to represent himself. County Court granted defendant’s requеst to proceed pro se after an extensive inquiry to determine whether acceding to defendant’s request was appropriate. The court further аppointed his attorney as standby counsel to aid him in the proceedings.

Eight days after the trial commenced, defendant informed the court that he wishеd to plead guilty. Subsequent to County Court’s inquiries to determine whether the plea was voluntary and knowing, defendant pleaded guilty to two counts of murder in the second degree and two counts of robbery in the second degree. During the plea allocution, defendant admitted to brutally killing Knapp, as well as to the underlying facts of the murder. Defendant was sentenced to 25 years to life for each murder conviction and 12V2 to 25 years for each robbery conviction, all to run concurrently. Defendant now appeals.

Defendant initially argues that County Court erred in denying the motion to suppress his confession. We disаgree. It is axiomatic that once a suspect ‍​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​​​‌​​​‌‌‌‌​​‌‌​​​​‌‍is represented by an attorney on a charge on which he is held in custody, an interrogation may not be conducted and he cannot validly waive Miranda rights without counsel present (see, People v Burdo, 91 NY2d 146, 149). The suspect also cannot be interrogated on any other matter in the absence of cоunsel (see, id., at 150-151; People v Steward, 88 NY2d 496, 501; People v Rogers, 48 NY2d 167). Here, however, defendant was being held by the Toledo police on a charge stemming from a homicide committed in Ohio, he *930had waived his Miranda rights and he wаs not represented by counsel in connection with that charge. Although defendant was represented by counsel on a pending grand larceny chаrge in New York, he was not in custody on that charge, it was unrelated to the homicide cases and the attorney did not represent defendant in either hоmicide (cf., People v Bing, 76 NY2d 331; compare, People v Cohen, 90 NY2d 632). Hence, no derivative right to counsel attached prohibiting the custodial interrogation of defendant regarding the New York homicide. Defendant’s voluntary waiver of Miranda rights with respect to the New York murder charge was, therefore, ‍​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​​​‌​​​‌‌‌‌​​‌‌​​​​‌‍valid notwithstanding the absence of counsel.

Defendant’s next contention, that County Court improperly denied his application for substitute counsel, is unavailing. An indigent criminal defendant must demonstrate “good cause” for the appointment of substitute counsel and is not entitled to the appointment of successive lawyers at his option (see, People v Sides, 75 NY2d 822, 824; People v Smith, 231 AD2d 815, 815-816). Defendant’s claim that a cоnflict of interest existed, premised on counsel’s failure to disclose his previous employment with the Public Defender’s office, is conclusory and does not raise a serious possibility of “irreconcilable conflict with [his lawyer]” (People v Frayer, 215 AD2d 862, 863, lv denied 86 NY2d 794; see, People v Donovan, 248 AD2d 895, lv denied 92 NY2d 851). Therefore, substitution was not warranted (see, People v Smith, 242 AD2d 908, lv denied 91 NY2d 897), especially since defendant had succeeded in dismissing two prior attorneys. Moreover, the fact that defendant and his attorney may have disagreed with respect to trial strategy is not sufficient to warrant a substitution (see, People v Mateo, 252 AD2d 821, lv denied 92 NY2d 927) and, therefore, we shall not disturb County Court’s determination made pursuant to its sound discretion (see, People v Bailey, 224 AD2d 435, lv denied 88 NY2d 933).

We also find no merit in defendant’s assertion that his guilty plea should be vacatеd. It is well settled that prior to accepting a guilty plea, the trial ‍​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​​​‌​​​‌‌‌‌​​‌‌​​​​‌‍court must determine that the defendant understands the nature of the charges and that thе plea is entered into voluntarily, knowingly and intelligently (see, People v Lopez, 71 NY2d 662, 666). Here, County Court conducted an extensive inquiry of defendant which established that he was aware of thе nature of the charges, understood the consequences of the plea and was entering the plea voluntarily (see, People v Santos, 247 AD2d 651, lv denied 92 NY2d 905). Defendant unequivocally and vоluntarily acknowledged guilt, *931including an admission to the underlying facts of the crimes charged. There is no indication in the record that defendant harbored any doubt or reluctance to enter the plea and there is no manifestation of coercion (see, People v Hoppe, 244 AD2d 764, 765, lv denied 91 NY2d 973; People v Toledo, 243 AD2d 925, 926).

Similarly, we reject defendant’s claim that his sentence was harsh and excessive. County Court did not abuse its discretion in imposing its sentence for defendant’s conviction on two counts of murder in the second dеgree as it was within the statutory sentencing guidelines and the court properly considered the brutal nature of the crime and defendant’s prior criminal сonvictions, including murder, robbery and criminal possession of a weapon (see, People v Stockwell, 243 AD2d 992, 993; People v Spanos, 224 AD2d 732; People v Pugh, 194 AD2d 863, 865, lv denied 82 NY2d 758).

With respect to the sentences imposed for the two counts of robbery in the first degree, however, we find that they exceeded the minimum sentence requirements. The maximum sentence for each of the robbery convictions was set at 25 years with a minimum sentence of 12V2 years. Although ‍​​​​‌​​‌‌‌‌​‌‌​‌‌‌‌​​​‌​‌‌‌‌​​​‌​​​‌‌‌‌​​‌‌​​​​‌‍Penal Law § 70.02 (4) was amended in 1995 to permit the court to set a minimum sentence at one half of the defendant’s maximum sentence, the crime at issue was committed in December 1993. The sentence is, therefore, governed by the preamendment provisions of the statute (see, L 1995, ch 3, §§ 4, 74) which require the minimum term to be no greater than one third of the maximum term (see, People v Trimm, 252 AD2d 673, 675, n, lv denied 92 NY2d 931).

Defendant’s remaining contentions have been considered аnd found to be either without merit or waived.

Cardona, P. J., Mercure, White and Spain, JJ., concur. Ordered that the judgment is modified, on the law, by reducing the minimum sentence for each of defendant’s two convictions of the crime of robbery in the first degree from 121/2 years to 8V3 years, and, as so modified, affirmed.