People v. Provosty

• Citation: 141 A.D.2d 867,529 N.Y.S.2d 894
• Parties: The PEOPLE, etc., Respondent, v. Eric PROVOSTY, Appellant.
• Decision Date: 27 June 1988
• Court: New York Supreme Court Appellate Division

Page 894

529 N.Y.S.2d 894

141 A.D.2d 867

The PEOPLE, etc., Respondent, v. Eric PROVOSTY, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 27, 1988.

Carlucci & Legum, Mineola (Robert J. Carlucci, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Gordon S. Latz, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, WEINSTEIN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered October 12, 1983, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial of that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement authorities.

ORDERED that the judgment is affirmed.

Although there was evidence indicating that the defendant had been drinking on the night of the shooting and his arrest shortly thereafter, there is no evidence to show that the defendant was so intoxicated that he was unable to comprehend the meaning of his statements ( see, People v. Schompert, 19 N.Y.2d 300, 279 N.Y.S.2d 715, 226 N.E.2d 305, cert. denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157; People v. Jenkins, 134 A.D.2d 523, 521 N.Y.S.2d 450; People v. Zito, 123 A.D.2d 799, 507 N.Y.S.2d 273, lv. denied 69 N.Y.2d 835, 513 N.Y.S.2d 1043, 506 N.E.2d 554; People v. Rykaczewski, 121 A.D.2d 409, 502 N.Y.S.2d 808, lv. denied 68 N.Y.2d 917 508 N.Y.S.2d 1038, 501 N.E.2d 611). The totality of the circumstances shows that the defendant was capable of intelligently waiving his Miranda rights (see, People v. Zito, supra ), and that he knowingly and voluntarily did so.

Furthermore, absent any evidence in the record that the police intentionally deprived the defendant of access to his family, there was no infringement of his rights ( see, People v. Fuschino, 59 N.Y.2d 91, 463 N.Y.S.2d 394, 450 N.E.2d 200). Nor is there any evidence that the police improperly eavesdropped on the defendant's telephone call to his mother, so that the incriminating statements he made to her need not be suppressed on that ground ( see, People v. Sobolof, 109 A.D.2d 903, 487 N.Y.S.2d 341).

The defendant, by failing to move at the Supreme Court to vacate or withdraw his guilty plea, has failed to preserve for appellate review his claim as to the insufficiency of the plea allocution ( see, People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938). In any event, reversal in the interest of justice is not warranted in this case on that ground.

It is well-settled that "a bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed" ( People v. Clairborne, 29 N.Y.2d 950, 951, 329 N.Y.S.2d 580, 280 N.E.2d 366). Moreover,...