September 27, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DARIANA VARGAS, DEFENDANT-APPELLANT
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered June 19, 2009. The judgment convicted defendant, upon her plea of guilty, of robbery in the first degree.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of robbery in the first degree (Penal Law § 160.15 ). We reject defendant's contention that the oral and written statements she made to police investigators should have been suppressed because she was in custody at the time those statements were made. County Court's determination after a Huntley hearing that defendant was not in custody at that time will not be disturbed unless it is clearly erroneous (see People v Schroo, 87 A.D.3d 1287, 1288, lv denied 19 N.Y.3d 977). Here, the court's decision to credit the testimony of the police investigator over that of defendant is entitled to deference (see People v Shaw, 66 A.D.3d 1417, 1417-1418, lv denied 14 N.Y.3d 773), and the record supports the court's conclusion that defendant was not in custody because a reasonable person in defendant's position, innocent of any crime, would have believed that he or she was free to leave (see People v Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851; see generally People v Morales, 281 A.D.2d 182, 182, lv denied 96 N.Y.2d 922). Defendant voluntarily accompanied the police investigators to their unmarked vehicle that was parked in front of her home and voluntarily answered questions (see Yukl, 25 N.Y.2d at 591). Defendant was informed that she was free to leave, the vehicle doors were unlocked and could be opened by her at any time, the entire interview lasted slightly under an hour, she was not handcuffed, and she never asked to leave (see People v Weakfall, 108 A.D.3d 1115, 1115-1116; see also People v Wilbert, 192 A.D.2d 1109, 1109-1110, lv denied 81 N.Y.2d 1082; People v Anderson, 145 A.D.2d 939, 939-940, lv denied 73 N.Y.2d 974).
We reject defendant's further contention that she was denied effective assistance of counsel at the Huntley hearing. Defendant was provided meaningful representation inasmuch as the facts and circumstances relevant to the determination of whether defendant was in custody when she was questioned were brought to the court's attention (see People v Baldi, 54 N.Y.2d 137, 150; see generally People v Centano, 76 N.Y.2d 837, 838; People v Johnson, 91 A.D.2d 327, 330, affd 61 N.Y.2d 932; People v Arcese, 148 A.D.2d 460, 461, lv denied 74 N.Y.2d 661), and mere speculation that a more vigorous cross-examination might have undermined the credibility of the People's witness is insufficient to establish that defense counsel was ineffective (see People v Wittman, 103 A.D.3d 1206, 1207, lv denied 21 N.Y.3d 915).