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

227
KA 08-01680
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WESLEY L. WOODS, JR., DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered July 23, 2008. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
robbery in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[3] [felony murder]) and robbery in the first degree (§ 160.15 [4]).
Defendant failed to preserve for our review his contention that County
Court erred in refusing to suppress his oral and written statements to
the police based on an unnecessary delay in his arraignment (see
People v Fuentes, 52 AD3d 1297, 1298, lv denied 11 NY3d 736; People v
Hayward, 48 AD3d 209, 210, lv denied 10 NY3d 840). 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]). Contrary to
defendant’s further contention, the court properly determined that
those statements were voluntary. Although defendant was detained and
questioned by the police for approximately 10 hours, “that [fact] does
not, by itself, render the statement[s] involuntary” (People v Weeks,
15 AD3d 845, 847, lv denied 4 NY3d 892). Here, there is no indication
in the record of the suppression hearing that defendant sought to end
the interrogation or that his alleged lack of sleep left him “ ‘so . .
. fatigued that he was incapable of intelligently waiving his rights
or comprehending the meaning of his statement[s]’ ” (People v
Towndrow, 236 AD2d 821, 822, lv denied 89 NY2d 1016). In addition,
the police officer’s generalized comment to defendant regarding the
benefits of cooperating with the police did not constitute a promise
of leniency that created “a substantial risk that the defendant might
falsely incriminate himself” (CPL 60.45 [2] [b] [i]; see People v
Lugo, 60 AD3d 867, 868). We conclude that probable cause for
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                                                         KA 08-01680

defendant’s arrest and detention was established by the circumstances
of his capture (see People v Conner, 15 AD3d 843, 844, lv denied 4
NY3d 885).

     The court also properly refused to suppress the clothes that
defendant was wearing when he was arrested and interviewed by the
police. Police officers may properly seize an object in plain view
without a warrant in the event that they are lawfully in the position
from which the object is viewed, they have lawful access to the object
and the object’s incriminating nature is immediately apparent (see
People v Brown, 96 NY2d 80, 88-89). Here, the clothes worn by
defendant were in plain view when the police captured and arrested
him, and brought him to the police station for questioning. The
clothing fit the general description given by a witness to the crimes
and as depicted in a video tape recovered by the police from a
security camera in the store at which the crimes occurred. “Under the
circumstances, the officers had the authority, [pursuant to] the plain
view doctrine, to seize defendant’s [clothing]” (People v Stein, 306
AD2d 943, 943, lv denied 100 NY2d 599, 1 NY3d 581). Defendant’s
contention that he was denied effective assistance of counsel involves
matters outside the record on appeal and thus is properly raised by
way of a motion pursuant to CPL article 440 (see People v Borcyk, 60
AD3d 1489, 1490, lv denied 12 NY3d 923; People v Barnes, 56 AD3d
1171). Finally, the sentence is not unduly harsh or severe.




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
