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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 63
The People &c.,
            Respondent,
        v.
Clifford Graham,
            Appellant.




          Piotr Banasiak, for appellant.
          James P. Maxwell, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          After defendant attempted to use counterfeit $20 bills
to pay for a hotel room and buy groceries at a convenience store,
he was arrested and taken to the criminal investigation division
of the Syracuse Police Department.    A detective read defendant

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his Miranda rights, which he waived.   Defendant did not, at that
time, provide consistent answers to the detectives' questions
regarding who had given him the counterfeit money.   The
detectives, therefore, ended the interrogation and told defendant
that, if he wanted to give them any further information that
would be useful to their investigation, he would have to arrange
to speak to them through defense counsel.
           Approximately three weeks later, defense counsel
contacted the detectives and indicated that defendant wished to
share additional information about the source of the counterfeit
money.   Defendant spoke at length with counsel in private before
meeting with one of the detectives, and counsel was present for a
portion of the ensuing conversation until leaving, with
defendant's consent, to attend to a prior commitment.   It is
undisputed that defendant was not advised of his Miranda rights
at this second interview.   During that interview, he made
statements that were allegedly inculpatory.
           Defendant subsequently moved, in a pro se omnibus
motion, for suppression of the statements that he made to the
detectives.   He asserted that his statements were the product of
"custodial interrogation," and were made in violation of his
Fifth and Fourteenth Amendment rights under the federal
constitution, as well as his rights under the state constitution
and CPL 60.45.   Supreme Court directed a "pre-trial hearing . . .
on defendant's motion to suppress [his] statement(s) based upon


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Miranda v Arizona, 384 US 436 [1966] and traditional
involuntariness grounds."
             During the suppression hearing, defendant asked the
court how long his initial waiver of his Miranda rights remained
valid, and the People conceded that the waiver was good only for
the day on which he was first arrested.    Defendant then conducted
a cross-examination of the detective with whom he spoke during
the second interview.    Supreme Court attempted to direct
defendant's focus by stating, "[s]ee, you're not going into the
circumstances surrounding your Miranda rights," and pointing out
that defendant's questions had no bearing on "whether the
interrogation session was legal."
             Supreme Court's efforts to focus defendant on a
possible violation of his Miranda rights were to no avail and, at
the close of the suppression hearing, defendant made an argument
that the police lacked probable cause to arrest him.    Rejecting
that argument "because the orders directing the hearings did not
involve any type of probable cause issue," the court denied
suppression of the statements made by defendant during the second
interview.    As relevant here, the court reasoned that:
             "[D]efendant was in custody on the matter,
             represented by counsel on the matter and
             therefore he could not waive counsel on the
             matter unless counsel was present, which did
             occur. Once a counsel waiver occurred in
             counsel's presence and the client agreed to
             submit to the interview on the topic at hand,
             to wit: counterfeit bills, counsel's
             presence thereafter is not required."


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           The matter proceeded to trial, at the close of which a
jury found defendant guilty of two counts each of criminal
possession of a forged instrument in the first degree and petit
larceny.   Upon defendant's appeal, the Appellate Division
affirmed (107 AD3d 1421 [2013]).   Regarding defendant's motion to
suppress statements made during the second interview, the court
concluded that "[i]nasmuch as defendant's counsel was present
during the first 20 minutes of the interview and informed the
detectives that defendant was willing to cooperate, it was
permissible for the officers to infer from defendant's conduct
and his attorney's assurances that defendant's waiver of his
Miranda rights was made on the advice of counsel" (id. at 1422-
1423).   A Judge of this Court granted defendant leave to appeal
(23 NY3d 963 [2014]).
           Because we conclude that defendant failed to preserve
the issue that he raises on this appeal, we affirm.   "Under
article VI, § 3 of the New York State Constitution, the Court of
Appeals, with limited exceptions, is empowered to consider only
'questions of law'" (People v Gray, 86 NY2d 10, 19 [1995]; see
People v Hawkins, 11 NY3d 484, 491 [2008]).   As relevant here,
CPL 470.05 (2) provides that a question of law regarding a ruling
is presented in a criminal proceeding "when a protest thereto was
registered, by the party claiming error, at [a] time . . . when
the court had an opportunity of effectively changing the same
. . . or if in response to a protest by a party, the court


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expressly decided the question raised on appeal."
          The issue argued on this appeal is whether the police
were required to again read defendant his Miranda rights when
they interviewed him a second time, at his request and in the
presence of counsel.   In particular, defendant contends that the
courts below erred in determining that the presence of counsel
obviated the need for police to advise him of his right to remain
silent during the second interview.    Defendant, however, did not
make this argument in his motion papers to the trial court or at
the suppression hearing.
          Moreover, while a general objection -- such as that
contained in defendant's omnibus motion -- is sufficient to
preserve an issue for our review when the trial court "expressly
decided the question raised on appeal" (CPL 470.05 [2]; see
People v Smith, 22 NY3d 462, 465 [2013]; People v Prado, 4 NY3d
725, 726 [2004]), here, Supreme Court did not expressly decide
the issue of whether the police were required to advise defendant
of his right to remain silent under the circumstances presented
by the second interview.   Rather, the court's decision was
focused on the right to counsel and whether counsel was required
to be present for the entirety of that interview.   The court
decided that counsel's continued presence was not required once
defendant waived his right to counsel in counsel's presence and
agreed to speak to police regarding the counterfeit bills.
Inasmuch as defendant made only a general motion for suppression


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and it cannot be said that the court expressly decided the issue
that defendant raises on this appeal, preservation has not been
established and that issue is, therefore, beyond our power to
review (see People v Turriago, 90 NY2d 77, 83-84 [1997]; People v
Johnson, 83 NY2d 831, 834 [1994]).
*   *   *   *   *     *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Read, Pigott, Rivera, Abdus-Salaam and Stein concur. Judge Fahey
took no part.

Decided May 5, 2015




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