People v. Cook

• Decision Date: 11 July 1985
• Citation: 112 A.D.2d 522,491 N.Y.S.2d 466
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert W. COOK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 466

491 N.Y.S.2d 466

112 A.D.2d 522

The PEOPLE of the State of New York, Respondent, v. Robert W. COOK, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 11, 1985.

Joseph Joch, Ithaca, for appellant.

James T. Hayden, Chemung County Dist. Atty., Elmira, for respondent.

Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

MIKOLL, Justice.

Appeal from a judgment of the County Court of Chemung County, rendered July 2, 1980, convicting defendant upon his plea of guilty of the crimes of forgery in the second degree, burglary in the third degree and bail jumping in the first degree.

Defendant was employed as a maintenance man at an apartment building in New York City. In delivering the mail in the building, he retained possession of an envelope addressed to a friend which contained a social services check. He forged the endorsement and cashed the check. The police investigating the cashing of the check were delayed in their questioning of defendant as he was hospitalized due to an automobile accident. After his release from the hospital, defendant voluntarily went to the police station for questioning. He made a statement there that he had cashed the check and was arrested.

Following a Huntley hearing, County Court denied his motion to suppress his statement. Defendant thereafter absconded. He was apprehended and charged with the added crime of bail jumping. As a result of plea negotiations, defendant pleaded guilty to forgery in the second degree, burglary in the third degree and bail jumping in the first degree. Later, he contended he was coerced and was allowed to withdraw his plea. At a subsequent date, defendant reentered his guilty plea pursuant to the original agreement.

After a predicate felony hearing, defendant was found to be a predicate felon. County Court sentenced defendant to 2 1/2 to 5 years' imprisonment on both the burglary and the forgery charges, and 2 to 4 years' imprisonment for the bail jumping; all sentences are to run concurrently. Defendant appeals.

There should be an affirmance. Defendant's contention that he was denied his right to counsel because, at the time he was interviewed at the police station, he was represented by counsel on an unrelated charge and counsel was not present for his statement, has not been preserved for appellate review. During the Huntley hearing, defendant failed to argue or request County Court to rule upon this issue. By not pursuing the issue, defendant failed to preserve it for our review as a matter of law (People v. Roache, 105 A.D.2d 811, 812, 481 N.Y.S.2d 442; see People v. Martin, 50 N.Y.2d 1029, 431...