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

888
KA 12-01775
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD P. MCGUAY, DEFENDANT-APPELLANT.


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

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (PATRICK E. SWANSON OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered October 3, 2011. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the second degree.

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

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of course of sexual conduct against a child in the
second degree (Penal Law § 130.80 [1] [a]), defendant contends that he
was deprived of his constitutional right to present a defense because
County Court denied his request to serve a late notice of intent to
present psychiatric evidence (see CPL 250.10 [2]). By pleading
guilty, however, defendant forfeited his right to challenge the
court’s denial of his motion (see People v Di Donato, 87 NY2d 992,
993). For the same reason, defendant also forfeited his right to
challenge the court’s denial of his request for the appointment of a
special prosecutor (see generally People v Taylor, 65 NY2d 1, 5).

     We reject defendant’s contention that the court erred in denying
his motion to suppress incriminating statements he made to law
enforcement officials. As the court properly determined, defendant
was not in custody when he made the statements, and thus the police
were not required to advise defendant of his Miranda rights (see
generally People v Paulman, 5 NY3d 122, 129; People v Berg, 92 NY2d
701, 704; People v Beard, 1 AD3d 886, 886, lv denied 1 NY3d 624). The
evidence at the Huntley hearing establishes that defendant voluntarily
accompanied the police to the station for both interviews, he was not
restrained in any way during either interview, and he was allowed to
go home at the conclusion of the interviews. Moreover, defendant was
specifically advised by one of the investigators that he was free to
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                                                         KA 12-01775

leave at anytime. In our view, a reasonable person in defendant’s
position who was innocent of any crime would not have believed that he
or she was in custody (see People v Yukl, 25 NY2d 585, 589, cert
denied 400 US 851; People v Lunderman, 19 AD3d 1067, 1068, lv denied 5
NY3d 830).

     Although defendant contends that his plea was involuntarily
entered, he failed to preserve his contention for our review inasmuch
as he did not move to withdraw his plea or to vacate the judgment of
conviction (see People v Cubi, 104 AD3d 1225, 1226, lv denied 21 NY3d
1003), and the narrow exception to the preservation rule does not
apply because defendant said nothing during the plea colloquy that
“clearly casts significant doubt upon the defendant’s guilt or
otherwise calls into question the voluntariness of the plea” (People v
Lopez, 71 NY2d 662, 666; see People v Hall, 119 AD3d 1349, 1349).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
