                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   106586
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JAMES NEAL, Also Known as BIG,
                    Appellant.
________________________________


Calendar Date:   September 11, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


     G. Scott Walling, Schenectady, for appellant.

      Kathleen B. Hogan, District Attorney, Lake George (Jason P.
Weinstein, New York Prosecutors Training Institute, Inc., Albany,
of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Warren County
(McKeighan, J.), rendered December 18, 2013, convicting defendant
upon his plea of guilty of the crime of robbery in the second
degree.

      In April 2013, defendant and several other individuals
forcibly entered a motel room and stole drugs, electronics,
jewelry and money from the women and children who were staying
there. A witness who was at the motel at the time of the robbery
was shown a photo array by an investigator from the State Police
in May 2013 but was unable to identify defendant. Approximately
one month later, the witness was shown a second photo array –
this one containing an older photo of defendant that more closely
                              -2-                106586

comported with the description of the alleged suspect1 – and the
witness identified defendant as someone she had observed at the
robbery. Defendant was thereafter arrested in New York City and
was driven upstate by State Police for arraignment. While en
route, defendant agreed to provide a written statement to the
police and was given Miranda warnings. A grand jury thereafter
handed down a 25-count indictment charging defendant and five
other individuals with various crimes associated with the April
2013 robbery.

      In his omnibus motion, defendant sought preclusion of the
witness identification and suppression of his written statement
made to the State Police. After a combined Wade/Huntley hearing,
County Court denied defendant's motion determining that the photo
lineup was not unduly suggestive and that defendant's statement
to the police was voluntary. Defendant thereafter pleaded guilty
to robbery in the second degree in full satisfaction of all the
charges against him and was sentenced, as a second felony
offender, to a prison term of seven years, to be followed by five
years of postrelease supervision. Defendant now appeals and we
affirm.

      Initially, defendant's contention that the photographic
identification procedure was unduly suggestive is unpreserved for
our review since he failed to raise at the suppression hearing
the specific grounds upon which he now challenges the procedure
(see CPL 470.05 [2]; People v Acevedo, 84 AD3d 1390, 1390 [2011],
lv denied 17 NY3d 951 [2011]; see also United States v Wade, 388
US 218 [1967]). By not filing an appropriate postallocution
motion to withdraw his plea, defendant likewise failed to
preserve his challenge to the factual sufficiency of his plea
(see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v
Martin, 125 AD3d 1054, 1054 [2015], lv denied 26 NY3d 932



    1
        The first photo array contained a more recent picture of
defendant taken just prior to his release from prison and
depicted him as noticeably thinner and with short hair. The
second photo array depicted an older photo of defendant in which
he appeared much heavier and with longer hair.
                              -3-                106586

[2015]).2

      Defendant next argues that the written statement that he
provided to the State Police after his arrest should have been
suppressed on the ground that it was involuntary because, while
being transported from New York City to the State Police barracks
in the Town of Greenwich, Washington County — nearly four hours
away — he was forced to ride in the back of the police car and
was handcuffed, and he provided the statement only after the
police promised to help him obtain reasonable bail. A confession
or written statement admitting guilt is inadmissible as
involuntarily made when it is obtained by, among other things,
the use of "undue pressure" or "by means of any promise or
statement of fact, which promise or statement creates a
substantial risk that the defendant might falsely incriminate
himself" (CPL 60.45 [2] [a], [b] [i]; see CPL 60.45 [1]; People v
Thomas, 22 NY3d 629, 646 [2014]). In this regard, we are guided
by the principle that the voluntariness of an inculpatory
statement is determined by looking at the totality of the
circumstances under which it was obtained (see People v Anderson,
42 NY2d 35, 38 [1977]; People v Pouliot, 64 AD3d 1043, 1044
[2009], lv denied 13 NY3d 838 [2009]; see also People v Mateo, 2
NY3d 383, 413-414 [2004], cert denied 542 US 946 [2004]), and we
give deference to the credibility determinations that are
supported by the record as a whole (see People v Flemming, 101
AD3d 1483, 1484 [2012], lv denied 21 NY3d 942 [2013]; People v
Button, 56 AD3d 1043, 1044 [2008], lv dismissed 12 NY3d 781
[2009]).

      Here, State Police Investigator David Ferro testified at
the Huntley hearing that when defendant arrived at a police
station near New York City, he introduced himself to defendant,
changed defendant's handcuffs, read defendant his Miranda rights
from a preprinted card and asked defendant whether he wished to
speak to the police. According to Ferro, defendant acknowledged


     2
        Defendant's contentions pertaining to the factual
sufficiency of his plea were raised for the first time in his
reply brief and, therefore, are not properly before us in any
event (see Matter of Claydon, 103 AD3d 1051, 1054 [2013]).
                              -4-                106586

that he understood his Miranda rights and that he wished to speak
to the police. Defendant was then placed in Ferro's patrol
vehicle in the right rear seat, next to Ferro, while another
officer drove. Ferro testified that he had informed defendant
that his arrest was about the robbery, to which defendant
responded by nodding his head, and asked defendant "if he wanted
to give his side of the story." Defendant agreed to provide a
statement to the police but indicated that he would like to "be
out on bail." Ferro informed defendant that he "would call the
[District Attorney's] office to let them know [that] if he
remained cooperative, [he would] have no problem making a call
and asking for a bail recommendation." Upon arriving in the
interview room, Ferro had defendant read out loud and initial
Miranda warnings printed on top of the form used to record
defendant's written statement, which was transcribed by Ferro.
According to Ferro, defendant did not ask to speak to an
attorney. While defendant made his statement, Ferro asked
defendant questions and, upon finishing his statement, Ferro read
the statement to defendant, who reviewed the statement, initialed
each page and signed the statement.

      In view of the foregoing circumstances, we find that County
Court correctly determined that the People established beyond a
reasonable doubt that defendant's written statement was given
voluntarily and that defendant knowingly, intelligently and
voluntarily waived his Miranda rights. Indeed, there is no
evidence in the record to suggest that the police acted in "an
unduly coercive or threatening manner" or that their conduct
undermined defendant's choice regarding "whether or not to
provide a statement" (People v Pouliot, 64 AD3d at 1045-1046
[internal quotations marks and citations omitted]; see CPL 60.45
[2] [a]). Furthermore, defendant's past experience with the
criminal justice system also supports the determination that he
knowingly and voluntarily provided the statement to the police
(see People v McLean, 59 AD3d 861, 863 [2009], affd 15 NY3d 117
[2010]; People v Ward, 241 AD2d 767, 769 [1997], lv denied 91
NY2d 837 [1997]). Finally, while Ferro informed defendant that
he would call the District Attorney's office and make a bail
recommendation if defendant remained cooperative, Ferro neither
promised defendant that he would be released on bail, nor gave
any assurance to defendant that he would not be prosecuted or
                              -5-                  106586

that he would receive lenient treatment; therefore, there was not
a substantial risk that defendant would falsely incriminate
himself (see CPL 60.45 [2] [b] [i]; People v Williamson, 245 AD2d
966, 968 [1997], lv denied 91 NY2d 946 [1998]).

      Finally, we perceive no circumstances in this case that
would warrant a reduction in the sentence as harsh or excessive.
After taking into account defendant's prior criminal history and
the violent nature of the crime, County Court was within its
discretion in imposing a sentence only two years beyond the
statutorily permitted minimum sentence (see People v Brabham, 126
AD3d 1040, 1044 [2015], lvs denied 25 NY3d 1160, 1171 [2015]).

     McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
