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People v. Cullop

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MICHAEL A. CULLOP, DEFENDANT-APPELLANT.

Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered November 30, 2005. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree (two counts), sexual abuse in the second degree (two counts) and endangering the welfare of a child.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, PERADOTTO, AND GREEN, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]). Defendant's contention that the first and second counts of the indictment were duplicitous is not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject the further contention of defendant that County Court erred in refusing to suppress his second statement to the police.

Although defendant stated prior to signing the second statement that he "didn't know whether he needed an attorney or not," that statement did not "unequivocally inform the police that he wanted the assistance of counsel" (People v Pinkney, 48 AD3d 707, 708, lv denied 10 NY3d 843; see People v Hall, 53 AD3d 1080, 1081-1082; People v Vaughan, 48 AD3d 1069, 1071, lv denied 10 NY3d 845, cert denied ___ US ___, 129 S Ct 252). Finally, the sentence is not unduly harsh or severe.

20081231

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