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People v. Call

Supreme Court of New York, Second Department

June 27, 2018

The People, etc., respondent,
v.
George Call, appellant. Ind. No. 39/15

          Argued - February 22, 2018

         D55777 G/hu

          Carol Kahn, New York, NY, for appellant.

          William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.

          MARK C. DILLON, J.P. CHERYL E. CHAMBERS SYLVIA O. HINDS-RADIX LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the County Court, Dutchess County (Stephen Greller, J.), rendered December 14, 2015, convicting him of rape in the second degree (two counts), upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officers.

         ORDERED that the judgment is affirmed.

         The defendant's argument that statements he made before and after the administration of Miranda warnings (see Miranda v Arizona, 384 U.S. 436) should have been suppressed as part of a ''single continuous chain of events'' in which he was subjected to custodial interrogation (People v Paulman, 5 N.Y.3d 122, 130 [internal quotation marks omitted]; see People v Chapple, 38 N.Y.2d 112, 115), is without merit. Even if the defendant was subjected to a period of custodial interrogation or its functional equivalent prior to the administration of Miranda warnings (see People v Ferro, 63 N.Y.2d 316, 322-323), he made no inculpatory statement, or any statement relating to his conduct in connection with the crime under investigation, until after such warnings had been properly given and his Miranda rights were effectively waived (see People v White, 40 A.D.3d 662, 662, afd 10 N.Y.3d 286; People v Prater, 258 A.D.2d 600, 601). "In the absence of any such pre- Miranda statement, there was no need to determine whether the pre- and post-Miranda sessions were part of a 'single continuous chain of events'" (People v White, 40 A.D.3d at 663, quoting People v Paulman, 5 N.Y.3d at 130; see People v Chapple, 38 N.Y.2d at 115). Nor was there evidence that the length or conditions of the defendant's pre-interrogation detention affected the voluntariness of his subsequent Miranda waiver (see People v Anderson, 42 N.Y.2d 35, 39-41; People v White, 40 A.D.3d at 663). Accordingly, that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officers was properly denied.

         In addition, we agree with the County Court's determination to limit the defendant's cross-examination of a police officer at the Huntley hearing (People v Huntley, 15 N.Y.2d 72; see People v McKenzie, 148 A.D.3d 936, 937; People v Amaya, 103 A.D.3d 907, 908). The court only limited the cross-examination after defense counsel asked the officer why his partner made a certain remark during the defendant's digitally recorded interview. Since this question called for speculation, the People's objection thereto was properly sustained (see People v Bhagwandin, 119 A.D.3d 810, 811; People v Francisco, 44 A.D.3d 870, 870; People v Barney, 277 A.D.2d 460, 460).

         Insofar as the defendant argues that the County Court should have directed him to submit to a psychiatric examination before accepting his plea of guilty, the argument is not preserved for appellate review since the defendant failed to raise the issue at a time when it might have been remedied (see CPL 470.05[2]; People v Carbone, 159 A.D.2d 511, 511). In any event, the colloquy between the defendant and the court at the plea proceeding did not reveal a reasonable ground to believe that the defendant lacked the capacity to understand the proceeding against him or to assist in his own defense (see People v Keiser, 100 A.D.3d 927, 929; People v Ramirez, 29 A.D.3d 1022, 1022; People v Rowley, 222 A.D.2d 718, 718).

         Review of the defendant's contention that the indictment contained duplicitous counts was forfeited by his plea of guilty (see People v Hansen, 95 N.Y.2d 227, 230; People v Beattie, 80 N.Y.2d 840, 842; People v Shand, 105 A.D.3d 777, 777; People v Bracewell, 26 A.D.3d 812, 812; People v Aiello, 153 A.D.2d 988, 990; People v Caban, 129 A.D.2d 721, 721).

         The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80, 83).

         To the extent the defendant argues that the County Court improperly denied his motion for resentencing, this contention is not properly before this Court since the order determining that motion was issued after ...


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