People v. Thayer

Dec 23, 1994
Versions:210 A.D.2d 977
621 N.Y.S.2d 985
1994 N.Y. App. Div. LEXIS 13471

—Judgment unanimously affirmed. Memorandum: The record supports the suppression court’s finding that defendant, despite his intellectual limitations, knowingly, voluntarily and intelligently waived his Miranda rights and agreed to speak to the police (see, People v Ludlow, 187 AD2d 936, lv denied 81 NY2d 888; People v Matthews, 148 AD2d 272, appeal dismissed 74 NY2d 950).

The contention that defendant was improperly sentenced as a second felony offender is not properly before us. That contention cannot be addressed on direct appeal from the judgment because it involves matters dehors the record (see, People v Mays, 209 AD2d 1019; People v Rodriguez, 123 AD2d 405, 406, lv denied 69 NY2d 832). Further, although those matters were addressed in defendant’s motion to set aside the sentence pursuant to CPL 440.20, defendant has not sought permission to appeal from the denial of that motion (see, CPL 450.15 [2]; People v Kihm, 143 AD2d 199, lv denied 72 NY2d 958). (Appeal from Judgment of Jefferson County Court, Clary, J.—Unauthorized Use Motor Vehicle, 2nd Degree.) Present— Denman, P. J., Green, Balio, Callahan and Boehm, JJ.