People v. Fears

• Decision Date: 08 April 1985
• Citation: 110 A.D.2d 712,488 N.Y.S.2d 26
• Parties: The PEOPLE, etc., Respondent, v. Johnny FEARS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 26

488 N.Y.S.2d 26

110 A.D.2d 712

The PEOPLE, etc., Respondent, v. Johnny FEARS, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 8, 1985.

Robert Faraguna, Brooklyn, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Dolores Kanski, Yonkers, of counsel), for respondent.

Before MOLLEN, P.J., and MANGANO, THOMPSON and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 10, 1983, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed.

Defendant's partially exculpatory statements made to the police before he was read his Miranda rights were admissible in evidence, and were properly not suppressed. The statements were made spontaneously and were not the product of police coercion or suggestion (see People v. Rogers, 48 N.Y.2d 167, 174, 422 N.Y.S.2d 18, 397 N.E.2d 709; People v. Maerling, 46 N.Y.2d 289, 302-303, 413 N.Y.S.2d 316, 385 N.E.2d 1245). Defendant's subsequent statements were made only after he was read his Miranda rights, including his right to have an attorney present at questioning, free of charge. He then acknowledged that he understood his rights, voluntarily waived them, and agreed to answer questions without an attorney being present (see, e.g., People v. Williams, 62 N.Y.2d 285, 288-289, 476 N.Y.S.2d 788, 465 N.E.2d 327). Thus, the latter statements were admissible and the branch of defendant's motion which sought to suppress them was properly denied (see, e.g., People v. Grant, 45 N.Y.2d 366, 408 N.Y.S.2d 429, 380 N.E.2d 257; People v. Buxton, 44 N.Y.2d 33, 403 N.Y.S.2d 487, 374 N.E.2d 384).

Additionally, defendant's motion to withdraw his plea of guilty was properly denied. Defendant's claims of innocence and duress are based only upon his unsupported allegations, which present an issue of credibility. Based upon this record, which shows that defendant unequivocally admitted his guilt at the plea allocution, defendant was not entitled to withdraw his plea (see People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329; People v. Bangert, 107 A.D.2d 752, 484 N.Y.S.2d 117; People v. Matta, 103 A.D.2d 756, 477 N.Y.S.2d 228).

Finally, defendant's claim that the hearing court improperly interfered with and terminated defense counsel's cross-examination of the prosecution's witness at the suppression hearing has been considered and...