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

26
KA 14-00823
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KARL KARLSEN, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.


     Appeal from a judgment of the Seneca County Court (Dennis F.
Bender, J.), rendered December 16, 2013. The judgment convicted
defendant, upon his plea of guilty, of murder in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of murder in the second degree (Penal Law
§ 125.25 [2]). Defendant contends that his statements to his wife
should have been ruled inadmissible pursuant to the statutory
privilege for marital communications (see CPLR 4502 [b]; see also CPL
60.10). We conclude that defendant’s challenge to County Court’s
pretrial evidentiary ruling does not survive but rather was forfeited
by his plea of guilty (see People v Alvarado, 103 AD3d 1101, 1101, lv
denied 21 NY3d 910; People v Davis, 99 AD3d 1228, 1229, lv denied 20
NY3d 1010; see also People v Hutter, 143 AD3d 574, 575, lv denied 28
NY3d 1125; see generally People v Campbell, 73 NY2d 481, 486).

     We reject defendant’s further contentions that his statements to
the police should have been suppressed on the grounds that he did not
validly waive his Miranda rights at the outset of the interrogation,
that he requested counsel during the interview, and that his
statements were involuntarily made in violation of his due process
rights, on account of the 9½-hour length and other circumstances of
the interrogation. The suppression hearing testimony supports the
court’s determination that, until near the end of the interrogation
session, the situation was such that “a reasonable man, innocent of
any crime,” who was “in the defendant’s position,” would have believed
that he was free to leave the police station (People v Yukl, 25 NY2d
585, 589, cert denied 400 US 851; see People v Vargas, 109 AD3d 1143,
1143, lv denied 22 NY3d 1044). In any event, the record supports the
court’s determination that defendant was read his Miranda warnings at
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                                                         KA 14-00823

the outset of the interrogation and waived his rights, agreeing to
speak with investigators in the absence of counsel (see People v
Pierce, 142 AD3d 1341, 1341-1342; People v Carbonaro, 135 AD3d 1543,
1547-1548, lv denied 27 NY3d 994, reconsideration denied 27 NY3d
1149). We further conclude that the record supports the court’s
determination that defendant did not, at any time during the
interrogation, unequivocally request the assistance of counsel (see
People v Schluter, 136 AD3d 1363, 1364, lv denied 27 NY3d 1138; People
v Twillie, 28 AD3d 1236, 1237, lv denied 7 NY3d 795; People v Ashraf,
186 AD2d 1057, 1057-1058, lv denied 80 NY2d 1025).

     Based on the record of the suppression hearing, which includes a
videotape of the interrogation, we conclude that defendant’s
statements were not elicited by the police in violation of defendant’s
due process rights (see generally Colorado v Connelly, 479 US 157,
167; People v Mateo, 2 NY3d 383, 413, cert denied 542 US 946). “It is
axiomatic that the length of the interrogation period ‘does not, by
itself, render the statement[s] involuntary’ ” (People v Clark, 139
AD3d 1368, 1369, lv denied 28 NY3d 928; see People v Weeks, 15 AD3d
845, 847, lv denied 4 NY3d 892). In any event, taking into account
that defendant was not in custody for nearly all of the interrogation,
we conclude that the length of the interrogation in this case was not
such that it deprived defendant of due process (see Clark, 139 AD3d at
1369; People v Gega, 74 AD3d 1229, 1231, lv denied 15 NY3d 851,
reconsideration denied 15 NY3d 920; see also People v Guilford, 21
NY3d 205, 212-215; see generally People v Anderson, 42 NY2d 35, 39).
Nothing in the record before us supports defendant’s contention that
the police employed physical or psychological tactics that were “so
fundamentally unfair as to deny [him] due process” and “induce a false
confession” (People v Bradberry, 131 AD3d 800, 802 [internal quotation
marks omitted]; see People v Tarsia, 50 NY2d 1, 11). Based on the
totality of the circumstances, we conclude that defendant’s will was
not overborne and that his statements to the police were voluntarily
made (see Clark, 139 AD3d at 1369; People v Sylvester, 15 AD3d 934,
935, lv denied 4 NY3d 836; see generally Mateo, 2 NY3d at 413).

     Defendant’s contention that the court erred in accepting his
guilty plea is unpreserved for our review, inasmuch as defendant did
not move to withdraw the plea or vacate the judgment of conviction
(see CPL 220.60 [3]; see also CPL 440.10), and nothing on the face of
the record calls into question the voluntariness of the plea or casts
significant doubt upon defendant’s guilt (see People v Mobley, 118
AD3d 1336, 1337, lv denied 24 NY3d 1121; People v Robinson, 112 AD3d
1349, 1349, lv denied 23 NY3d 1042). In any event, there is no merit
to the contention. Defendant was not entitled to assurances at the
time of the plea that California would not prosecute him for an
unrelated homicide, and defendant’s plea of guilty was not induced by
the contemporaneous expressions of irresolution or uncertainty whether
California might do so. Further, the court did not fail to discharge
any duty that it might have been under to inquire into defendant’s
mental capacity to plead guilty (see generally People v Taylor, 13
AD3d 1168, 1169-1170, lv denied 4 NY3d 836). Nothing on the face of
the record demonstrates that defendant lacked a rational understanding
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                                                         KA 14-00823

of the nature and consequences of his plea (see People v Young, 66
AD3d 1445, 1446, lv denied 13 NY3d 912; People v Lear, 19 AD3d 1002,
1002, lv denied 5 NY3d 807).

      To the extent that defendant’s claims of ineffective assistance
of counsel survive his guilty plea (see generally People v VanVleet,
140 AD3d 1633, 1633, lv denied 28 NY3d 938; People v Lucieer, 107 AD3d
1611, 1612), we conclude that those claims lack merit. Defendant
received “an advantageous plea and nothing in the record casts doubt
on the apparent effectiveness of counsel” (People v Ford, 86 NY2d 397,
404).




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
