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

703
KA 11-01064
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                MEMORANDUM AND ORDER

BRIAN BROWN, DEFENDANT-APPELLANT.


JEREMY D. ALEXANDER, UTICA, FOR DEFENDANT-APPELLANT.

BRIAN BROWN, DEFENDANT-APPELLANT PRO SE.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L. Dwyer,
J.), rendered March 24, 2011. The judgment convicted defendant, upon
a jury verdict, of robbery in the first degree (six counts), attempted
aggravated murder, aggravated assault upon a police officer and criminal
possession of a weapon in the second degree (three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, attempted aggravated murder (Penal Law ''
110.00, 125.26 [1] [a] [i]) and aggravated assault upon a police officer
(' 120.11), defendant contends that County Court erred in refusing to
suppress his confession because it was obtained in violation of his right
to counsel. More specifically, defendant contends that, after being
advised of his Miranda rights, he invoked his right to counsel by stating
to the police investigators, AI don=t have an attorney@ and Aif I can=t
afford an attorney, will it make a difference?@ We reject that contention.
 The statement AI don=t have an attorney@ does not constitute an unequivocal
request for counsel (see People v Ward, 134 AD2d 544, 544-545, lv denied
70 NY2d 1012; see also People v Cotton, 277 AD2d 461, 462, lv denied 96
NY2d 757), nor does a statement from a suspect that he or she cannot afford
an attorney constitute such a request (see People v Mandrachio, 55 NY2d
906, 907, cert denied 457 US 1122). Similarly, the statement, Aif I can=t
afford an attorney, will it make a difference?@ was merely Aan inquiry
about whether or not [defendant] should contact an attorney[, which] does
not, without more, constitute an unequivocal invocation of the right to
counsel@ (People v Hurd, 279 AD2d 892, 893; see People v Vaughan, 48 AD3d
1069, 1071, lv denied 10 NY3d 845, cert denied 555 US 910; People v Williams,
286 AD2d 918, 919, lv denied 97 NY2d 763).
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                                                                KA 11-01064

     We reject defendant=s further contention that his confession was
involuntary Ain the traditional, pre-Miranda sense.@ There is no evidence
in the record that defendant=s confession was Aobtained from him . . .
by the use or threatened use of physical force@ by the police (CPL 60.45
[2] [a]; see People v Kelly, 309 AD2d 1149, 1151, lv denied 1 NY3d 575;
cf. People v Daniels, 117 AD3d 1573, 1574-1575). Indeed, the DVD of
defendant=s interrogation shows a well-treated suspect who joked and
laughed at times with the investigators, and who was afforded food, drink
and opportunities for rest (cf. People v Guilford, 21 NY3d 205, 209-213).


     Defendant=s remaining contention with respect to the admissibility
of his confession is that his waiver of Miranda rights was not voluntary,
knowing and intelligent because one of the investigators told him that
he Adid not need an attorney.@ Because defendant Afailed to raise this
specific contention at the hearing or in his motion papers, this issue
is unpreserved for [our] review@ (People v Grace, 245 AD2d 387, 388, lv
denied 91 NY2d 941; see People v Tutt, 38 NY2d 1011, 1012; People v Louisias,
29 AD3d 1017, 1018-1019, lv denied 7 NY3d 814). In any event, we conclude
that any error in failing to suppress the confession is harmless inasmuch
as the proof of guilt is overwhelming and there is no reasonable possibility
that the jury would have acquitted defendant if the confession had been
suppressed (see People v Wardlaw, 18 AD3d 106, 109, affd 6 NY3d 556; see
generally People v Crimmins, 36 NY2d 230, 237). We note that, at the
time of his arrest, defendant possessed the gun that was used to shoot
the deputy sheriff and fired during the two bank robberies. Defendant
also possessed more than $5,000 in cash. Moreover, defendant wrote a
letter to the District Attorney while in jail, in which he stated, AThe
fact of the matter is I broke the law in Oneida County@ and that Athese
crimes I committed [were] done out of love for my mother and desperation
for a better life.@ Finally, defendant matched the description of the
person who robbed the banks and shot the deputy sheriff, and he was wearing
the same type and color of clothing.

     Defendant further contends that the evidence is legally insufficient
to establish that he intended to kill the deputy sheriff, which is a
necessary element of attempted aggravated murder. We reject that
contention as well. AA defendant may be presumed to intend the natural
and probable consequences of his actions@ (People v Mahoney, 6 AD3d 1104,
1104, lv denied 3 NY3d 660; see People v Ford, 114 AD3d 1273, 1274, lv
denied 23 NY3d 962), and A[i]ntent may be inferred from conduct as well
as the surrounding circumstances@ (People v Steinberg, 79 NY2d 673, 682;
see People v Kelly, 79 AD3d 1642, 1642, lv denied 16 NY3d 832). Here,
defendant=s intent to kill may be inferred from the fact that, with a loaded
gun in his hand, he extended his arm directly toward the deputy sheriff
and fired at least three shots, one of which struck the deputy sheriff
in the foot. Viewing the evidence in the light most favorable to the
People, as we must (see People v Contes, 60 NY2d 620, 621), we conclude
that there is a Avalid line of reasoning and permissible inferences which
could lead a rational person to the conclusion@ that defendant possessed
the intent to kill (People v Bleakley, 69 NY2d 490, 495; see People v
Geddes, 49 AD3d 1255, 1256, lv denied 10 NY3d 863; People v Sherry, 41
AD3d 1235, 1236, lv denied 9 NY3d 926). Moreover, viewing the evidence
                                   -3-                                 703
                                                               KA 11-01064

in light of the elements of the crime of attempted aggravated murder as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495). Although defendant testified that he intended
only to scare the victim, Ait was within the province of the jury to assess
[his] credibility and reject [his] testimony@ (People v Mercado, 113 AD3d
930, 932).

     We have reviewed defendant=s remaining contentions, including those
raised in his pro se supplemental brief, and conclude that they lack merit.




Entered:   August 8, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
