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

24
KA 10-02453
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL D. SCHLUTER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


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.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered October 7, 2010. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the first degree, criminal sexual act in the second
degree, criminal sexual act in the third degree, rape in the third
degree and falsely reporting an incident in the second degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of, inter alia, course of
sexual conduct against a child in the first degree (Penal Law § 130.75
[1] [b]) and, in appeal No. 2, he appeals from a judgment convicting
him upon his plea of guilty of criminal sexual act in the third degree
(§ 130.40 [2]).

     Contrary to defendant’s contention in appeal No. 1, County Court
properly refused to suppress statements defendant made to the police
during a recorded interrogation. Defendant waived his Miranda rights
at the outset of the interrogation, but he contends that his waiver
was rendered invalid by police conduct during the interrogation.
Defendant failed to raise that specific contention in his motion
papers or at the suppression hearing as a ground for suppressing his
statements, and thus he failed to preserve that contention for our
review (see People v Brown, 120 AD3d 954, 955, lv denied 24 NY3d
1118). In any event, we reject his contention “that the validity of
the waiver was vitiated by police conduct that occurred after the
waiver” (Matter of Jimmy D., 15 NY3d 417, 424). Contrary to
defendant’s further contention, the court properly concluded that he
did not make an unequivocal request for counsel during the
                                 -2-                            24
                                                         KA 10-02453

interrogation (see People v Hicks, 69 NY2d 969, 970, rearg denied 70
NY2d 796; People v Regan, 21 AD3d 1357, 1358).

     We reject defendant’s contention in both appeals that the court
erred in denying his pro se motion to withdraw his pleas without
conducting a hearing. The record of the plea proceeding belies his
contention that he did not have sufficient time to consult with
counsel (see People v Griffin, 89 AD3d 1235, 1236) and, moreover,
counsel’s advice to defendant that he would likely receive a harsher
sentence after trial does not constitute coercion (see People v
Griffin, 120 AD3d 1569, 1570, lv denied 24 NY3d 1084).

     In view of our determination affirming the judgment in appeal No.
1, there is no basis to grant defendant’s request to reverse the
judgment in appeal No. 2 and to vacate his plea of guilty (cf. People
v Fuggazzatto, 62 NY2d 862, 863).




Entered:   February 11, 2016                    Frances E. Cafarell
                                                Clerk of the Court
