People v. Jewell
| Decision Date | 11 September 1986 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Sean JEWELL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Thomas J. Fox, Public Defender, Binghamton, for appellant.
Patrick H. Mathews, Dist. Atty. (Gerald F. Mollen, of counsel), Binghamton, for respondent.
Before MAHONEY, P.J., and KANE, MAIN, MIKOLL and HARVEY, JJ.
Appeal from a judgment of the County Court of Broome County (Monserrate, J.), rendered July 19, 1984, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
In March 1984, three men broke into a card game in the City of Binghamton, Broome County, and, displaying a shotgun, forcibly stole money from five participants in the game. While investigating an unrelated crime, police questioned Thomas McAvoy, who admitted his involvement in the crime and implicated defendant. McAvoy agreed to make a telephone call to defendant to be recorded by the police. The taped telephone conversation included inculpatory statements by defendant. Defendant was subsequently charged with five counts of robbery in the first degree.
Defendant moved to suppress the taped telephone conversation and various other inculpatory statements he had made to the police. The suppression motion was denied as to the taped conversation. Defendant subsequently pleaded guilty to one charge of robbery in the first degree in full satisfaction of the indictment and was sentenced to an indeterminate term of 3 1/3 to 10 years in prison. This appeal ensued.
Defendant contends that the taped conversation violated his right to counsel. Defendant concedes, however, that when the tape was made he was not in custody and that he had retained counsel only on a prior unrelated charge. The Court of Appeals has held that a taped conversation obtained under these circumstances does not violate a defendant's right to counsel (see, People v. Farruggia, 61 N.Y.2d 775, 473 N.Y.S.2d 158, 461 N.E.2d 295; People v. Hauswirth, 60 N.Y.2d 904, 470 N.Y.S.2d 583, 458 N.E.2d 1260). Since this court is bound by the holdings of the Court of Appeals (People v. Munoz, 40 A.D.2d 337, 338, 340 N.Y.S.2d 238, affd. 33 N.Y.2d 998, 353 N.Y.S.2d 965, 309 N.E.2d 427; Matter of Garvey Carting & Stor. v. State Tax Commn., 27 A.D.2d 337, 338, 279 N.Y.S.2d 508, affd. 25 N.Y.2d 857, 303 N.Y.S.2d 873, 250 N.E.2d 868), defendant's suggestion that we reevaluate the holdings of Farruggia and...
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... ... Thus, his contention that the sentence was harsh and excessive is unpersuasive ( see, People v. Jewell, 123 A.D.2d 463, 464, 506 N.Y.S.2d 236, lv. denied 68 N.Y.2d 1001, 510 N.Y.S.2d 1034, 503 N.E.2d 131; People v. Quick, 122 A.D.2d 296, 299, 504 N.Y.S.2d 267, lv. denied 69 N.Y.2d 715, 512 N.Y.S.2d 1042, 504 N.E.2d 410) ... Judgment ... ...
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... ... The sentence was within the statutory guidelines and, indeed, less than the maximum allowable. Defendant has shown neither an abuse of discretion in sentencing by County Court nor sufficient extraordinary circumstances to justify a reduction of the sentence (see, People v. Jewell, 123 A.D.2d 463, 464, 506 N.Y.S.2d 236, lv. denied 68 N.Y.2d 1001, 510 N.Y.S.2d 1034, 503 N.E.2d 131) ... ...
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