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

899
KA 09-01313
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARIANA VARGAS, DEFENDANT-APPELLANT.


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 June 19, 2009. The judgment convicted
defendant, upon her plea of guilty, of 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 her
upon her plea of guilty of robbery in the first degree (Penal Law §
160.15 [3]). We reject defendant’s contention that the oral and
written statements she made to police investigators should have been
suppressed because she was in custody at the time those statements
were made. County Court’s determination after a Huntley hearing that
defendant was not in custody at that time will not be disturbed unless
it is clearly erroneous (see People v Schroo, 87 AD3d 1287, 1288, lv
denied 19 NY3d 977). Here, the court’s decision to credit the
testimony of the police investigator over that of defendant is
entitled to deference (see People v Shaw, 66 AD3d 1417, 1417-1418, lv
denied 14 NY3d 773), and the record supports the court’s conclusion
that defendant was not in custody because a reasonable person in
defendant’s position, innocent of any crime, would have believed that
he or she was free to leave (see People v Yukl, 25 NY2d 585, 589, cert
denied 400 US 851; see generally People v Morales, 281 AD2d 182, 182,
lv denied 96 NY2d 922). Defendant voluntarily accompanied the police
investigators to their unmarked vehicle that was parked in front of
her home and voluntarily answered questions (see Yukl, 25 NY2d at
591). Defendant was informed that she was free to leave, the vehicle
doors were unlocked and could be opened by her at any time, the entire
interview lasted slightly under an hour, she was not handcuffed, and
she never asked to leave (see People v Weakfall, 108 AD3d 1115, 1115-
1116; see also People v Wilbert, 192 AD2d 1109, 1109-1110, lv denied
81 NY2d 1082; People v Anderson, 145 AD2d 939, 939-940, lv denied 73
                                  -2-                         899
                                                        KA 09-01313

NY2d 974).

     We reject defendant’s further contention that she was denied
effective assistance of counsel at the Huntley hearing. Defendant was
provided meaningful representation inasmuch as the facts and
circumstances relevant to the determination of whether defendant was
in custody when she was questioned were brought to the court’s
attention (see People v Baldi, 54 NY2d 137, 150; see generally People
v Centano, 76 NY2d 837, 838; People v Johnson, 91 AD2d 327, 330, affd
61 NY2d 932; People v Arcese, 148 AD2d 460, 461, lv denied 74 NY2d
661), and mere speculation that a more vigorous cross-examination
might have undermined the credibility of the People’s witness is
insufficient to establish that defense counsel was ineffective (see
People v Wittman, 103 AD3d 1206, 1207, lv denied 21 NY3d 915).




Entered:     September 27, 2013                Frances E. Cafarell
                                               Clerk of the Court
