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

1420
KA 11-00974
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MILTON HILL, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered April 27, 2010. The judgment
convicted defendant, upon his plea of guilty, of burglary in the first
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 one count of burglary in the first degree
(Penal Law § 140.30 [1]). Defendant contends that Supreme Court erred
in refusing to suppress his statement to the police because the
statement was made in violation of his right to counsel. We reject
that contention. “The testimony of defendant that he invoked his
right to counsel before confessing presented a credibility issue that
[the c]ourt was entitled to resolve in the People’s favor” (People v
Price, 309 AD2d 1259, 1259, lv denied 1 NY3d 578; see People v
McCooey, 156 AD2d 927, 927, lv denied 75 NY2d 921). “ ‘The
suppression court’s credibility determinations and choice between
conflicting inferences to be drawn from the proof are granted
deference and will not be disturbed unless unsupported by the
record’ ” (People v Twillie, 28 AD3d 1236, 1237, lv denied 7 NY3d 795;
see People v Alexander, 51 AD3d 1380, 1382, lv denied 11 NY3d 733).
Here, the record supports the court’s determination that defendant did
not invoke his right to counsel before confessing to his involvement
in the charged crime.

     We reject defendant’s further contention that his sentence is
unduly harsh or severe. While defendant received a more severe
sentence than that of his codefendants, we note that he was the one
                                 -2-                   1420
                                                  KA 11-00974

who carried a gun and shot the victim.




Entered:   December 28, 2012             Frances E. Cafarell
                                         Clerk of the Court
