                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   103860
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DAVID PERKINS, Also Known as
   DJ,
                    Appellant.
________________________________


Calendar Date:   November 12, 2014

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Gail B. Rubenfeld, Monticello, for appellant.

      James R. Farrell, District Attorney, Monticello, for
respondent.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered October 28, 2010, convicting
defendant upon his plea of guilty of the crimes of murder in the
second degree, robbery in the first degree and criminal
possession of a weapon in the second degree.

      Defendant was charged with numerous crimes in connection
with an incident where he shot and killed the victim during the
course of an armed robbery. After a Huntley hearing, County
Court denied defendant's motion to suppress his statement to
police. Defendant then pleaded guilty, in satisfaction of the
indictment, to murder in the second degree, robbery in the first
degree and criminal possession of a weapon in the second degree.
                              -2-                103860

The court sentenced him to the agreed-upon concurrent prison
terms of 18 years to life on the murder conviction, 18 years
followed by five years of postrelease supervision on the robbery
conviction and 15 years followed by five years of postrelease
supervision on the weapon possession conviction. Defendant
appeals.

      County Court properly found that defendant's confession to
the police was knowing, intelligent and voluntary. The question
of whether a statement is voluntary is a factual issue to be
determined based on the totality of the circumstances, with
deference accorded to the suppression court's factual findings
and credibility determinations (see People v Mattis, 108 AD3d
872, 874 [2013], lvs denied 22 NY3d 957 [2013]). Some of the
factors to be considered in this assessment include "'the
defendant's age, experience, education, background, intelligence
and capacity to understand the warnings,'" constitutional rights
and consequences of a waiver (People v Seymour, 14 AD3d 799, 801
[2005], lv denied 4 NY3d 856 [2005], quoting People v Morton, 116
AD2d 925, 926 [1986], lv denied 67 NY2d 887 [1986]).

      Here, defendant was 16 years old. He was in tenth grade
and received special education services, but a school
psychologist testified that he was not retarded and, despite
certain deficits and an IQ of 77, he could understand the
language used in Miranda warnings. Defendant had previously been
arrested and adjudicated a youthful offender and was on probation
at the time of questioning. He had also been questioned by
police approximately six months prior to giving the statement at
issue here, had been given Miranda warnings on that occasion, and
talked to the police for hours but did not admit to any
wrongdoing.

      County Court accepted the testimony of police officers that
they read defendant the Miranda warnings before any questioning
began and that he acknowledged his understanding of his rights.
Both the testimony and the recorded portion of his statement
demonstrate that he understood the severity of the potential
charges and was not intimidated by the police, as he repeatedly
challenged their tactics, accused them of lying to him and
demanded to hear the recorded interviews of others who allegedly
                              -3-                  103860

made statements against him. Any trickery or deception used by
the police was not so fundamentally unfair as to deny defendant
due process (see People v Wolfe, 103 AD3d 1031, 1035 [2013], lv
denied 21 NY3d 1021 [2013]). While police allowed defendant's
mother into the later portion of the interview and she encouraged
him to confess the truth, the credible testimony established that
defendant was informed that his mother was not under arrest. The
court did not find credible the testimony of defendant and his
mother concerning threats or promises allegedly made during the
interrogation. Considering the totality of the circumstances,
defendant's waiver of his rights was knowing, intelligent and
voluntary. Accordingly, County Court properly declined to
suppress his statement.

      We will not address defendant's current argument that his
statement was obtained in violation of his right to remain
silent, as he did not preserve this argument by raising it before
County Court (see People v Mandrachio, 55 NY2d 906, 907 [1982],
cert denied 457 US 1122 [1982]; People v Wade, 146 AD2d 589, 590
[1989], lv denied 73 NY2d 1023 [1989]), and we decline to
exercise our interest of justice jurisdiction with respect
thereto. Defendant's remaining arguments have been reviewed and
are without merit.

     Egan Jr., Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
