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

383
KA 15-00636
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD T. SPOOR, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Seneca County
(Daniel J. Doyle, J.), rendered February 6, 2015. The judgment
convicted defendant, upon his plea of guilty, of criminal sexual act
in the first degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal sexual act in the first degree (Penal Law
§ 130.50 [3]), defendant contends that Supreme Court erred in refusing
to suppress his statement to the police. We reject that contention.
The court properly determined that defendant was not in custody when
he made his admission to a police investigator. The evidence at the
suppression hearing established that defendant voluntarily accompanied
the investigator to a police station while seated in the front
passenger seat of an unmarked vehicle, was cooperative, and was never
restrained in any way, and the police conducted only investigatory
rather than accusatory questioning (see People v Murphy, 43 AD3d 1276,
1277, lv denied 9 NY3d 1008; People v Williams, 283 AD2d 998, 999, lv
denied 96 NY2d 926). Defendant then agreed to undergo a polygraph
examination, and he voluntarily accompanied the investigator to
another police station in the front seat of the vehicle and was
offered food along the way (see People v Serrano, 14 AD3d 874, 875, lv
denied 4 NY3d 803). Another police investigator provided Miranda
warnings prior to administering the polygraph examination, which
produced an inconclusive result, but defendant subsequently made his
admission to the investigator during a further interview after
acknowledging that he was voluntarily present and remained willing to
speak. Under those circumstances, we conclude that “a reasonable
person, innocent of any crime, would not have thought he or she was in
custody if placed in defendant’s position” (People v Smielecki, 77
AD3d 1420, 1421, lv denied 15 NY3d 956; see generally People v Yukl,
25 NY2d 585, 589, cert denied 400 US 851).
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                                                         KA 15-00636

     In any event, defendant validly waived his Miranda rights prior
to making his admission to the investigator. Contrary to defendant’s
contention, the Miranda warnings he was provided were not deficient.
“In determining whether police officers adequately conveyed the
[Miranda] warnings, . . . [t]he inquiry is simply whether the warnings
reasonably conve[y] to [a suspect] his [or her] rights as required by
Miranda” (Florida v Powell, 559 US 50, 60 [internal quotation marks
omitted]; see People v Dunbar, 24 NY3d 304, 315, cert denied ___ US
___, 135 S Ct 2052). Here, we conclude that “the warnings given to
defendant reasonably apprised him of his rights” (People v Bakerx, 114
AD3d 1244, 1247, lv denied 22 NY3d 1196). Contrary to defendant’s
further contention, despite his purported literacy deficiencies, the
record of the suppression hearing supports the court’s determination
that defendant knowingly and intelligently waived his Miranda rights
before making the admission (see People v Williams, 62 NY2d 285, 288-
289; People v Bray, 295 AD2d 996, 997, lv denied 98 NY2d 694).

     Contrary to defendant’s further contention, under the
circumstances of this case, the fact that he was transported to a
second police station and spent several hours with the police, and
that the police conducted a polygraph examination, did not render his
admission involuntary (see Serrano, 14 AD3d at 875; see also People v
Ellis, 73 AD3d 1433, 1434, lv denied 15 NY3d 851; see generally People
v Tarsia, 50 NY2d 1, 11).

     Defendant’s contention that he was denied effective assistance of
counsel survives his guilty plea “only insofar as he demonstrates that
‘the plea bargaining process was infected by [the] allegedly
ineffective assistance or that defendant entered the plea because of
[his] attorney[’s] allegedly poor performance’ ” (People v Rausch, 126
AD3d 1535, 1535, lv denied 26 NY3d 1149 [internal quotation marks
omitted]). Here, to the extent that defendant contends that he
entered the plea because of his attorney’s allegedly poor performance,
i.e., defense counsel’s failure to investigate the crimes properly and
to obtain material from defendant’s federal prosecution for
potentially impeaching a police witness, that contention is not
properly before us because it involves matters outside the record on
appeal and thus must be raised by way of a motion pursuant to CPL
article 440 (see People v Bradford, 126 AD3d 1374, 1375, lv denied 26
NY3d 926; Rausch, 126 AD3d at 1535-1536).

     Defendant failed to preserve for our review his further
contention that his guilty plea was not knowingly and voluntarily
entered inasmuch as he did not move to withdraw the plea or to vacate
the judgment of conviction (see People v Alexander, 132 AD3d 1412,
1413, lv denied 27 NY3d 1148). Moreover, “[t]his case does not fall
within the rare exception to the preservation requirement set forth in
People v Lopez (71 NY2d 662, 666), inasmuch as nothing in the plea
colloquy casts significant doubt on defendant’s guilt or the
voluntariness of the plea” (Alexander, 132 AD3d at 1413 [internal
quotation marks omitted]). In any event, we conclude that defendant’s
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                                              KA 15-00636

contention is without merit.




Entered:   March 31, 2017            Frances E. Cafarell
                                     Clerk of the Court
