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

708
KA 12-00372
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY A. WEAKFALL, JR., DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered November 24, 2009. 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, who was 15 years old, physically abused his
girlfriend’s 20-month-old daughter over the course of several weeks.
On November 21, 2008, he beat the child for approximately one hour and
then left her alone for several hours in the residence, where she died
from multiple blunt force traumatic injuries.

     County Court properly denied defendant’s motion to suppress his
statements to the police that were made while he was questioned for
approximately one hour before being advised of his Miranda rights.
Due to the initial statements of the child’s mother and defendant that
a babysitter was responsible for the child’s death, the police treated
defendant as a witness. During that one-hour period, “the questioning
was investigative, not accusatory” (People v Centano, 76 NY2d 837,
838) and, according to the testimony of a police witness at the
suppression hearing, defendant was “free to leave the unlocked
interview room at any time” (see id.; cf. People v Lee, 96 AD3d 1522,
1526). The atmosphere of the interview was not “coercive” (Centano,
76 NY2d at 838), and the interview was approximately one hour in
duration (see People v Cordato, 85 AD3d 1304, 1309-1310, lv denied 17
NY3d 815). As soon as defendant admitted his involvement, the police
treated him as a suspect, read defendant his Miranda rights, and
complied with the procedural protections of CPL 120.90 (7) and Family
Court Act § 305.2. We thus agree with the suppression court that
                                 -2-                           708
                                                         KA 12-00372

defendant was not “in custody” during that one-hour period for
purposes of Miranda, CPL 120.90 (7), or Family Court Act § 305.2 (see
Centano, 76 NY2d at 837-838; People v Kelley, 91 AD3d 1318, 1318, lv
denied 19 NY3d 963).

     By pleading guilty, defendant forfeited his present challenge to
the sufficiency of the evidence before the grand jury (see People v
Plunkett, 19 NY3d 400, 405-406; People v Hansen, 95 NY2d 227, 233;
People v Kazmarick, 52 NY2d 322, 326). Defendant failed to preserve
for our review his further contention that the court violated the
terms of the plea bargain by stating at sentencing that the parole
board should consider defendant’s age and the nature of the crime (see
CPL 470.05 [2]). In any event, defendant’s contention is without
merit because the court’s statement “is not binding on the State Board
of Parole” (People v Van Luc, 222 AD2d 1111, 1112, lv denied 87 NY2d
1026; see Executive Law § 259-i [2] [c] [A]).

     Defendant’s bargained-for sentence of a term of incarceration of
13 years to life is not unduly harsh or severe. Defendant’s claim
regarding the voluntariness of his plea is not preserved for our
review because defendant did not move to withdraw his plea or move to
vacate the judgment of conviction (see People v Rosado, 70 AD3d 1315,
1315, lv denied 14 NY3d 892). In any event, the record demonstrates
that defendant’s plea was knowing, voluntary, and intelligent (see
People v Seeber, 4 NY3d 780, 781-782). Contrary to the further
contention of defendant, the court properly denied his motion to
transfer the action to Family Court because the People did not consent
to the transfer (see CPL 210.43 [1] [b]). Also contrary to
defendant’s contention, the court was not required to conduct a
hearing on the issue whether the action should be transferred to
Family Court (see CPL 210.43 [3]).




Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
