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PEOPLE of the State of New York, Plaintiff-Respondent, v. James M. LYNCH, Defendant-Appellant.
Defendant appeals from a judgment convicting him, upon his plea of guilty, of one count of sodomy in the first degree (Penal Law former § 130.50 [1] ) in full satisfaction of a 36-count indictment charging him with one count each of rape in the first degree (§ 130.35[1] ), assault in the second degree (§ 120.05[6] ), assault in the third degree (§ 120.00[1] ) and unlawful imprisonment in the second degree (§ 135.05), and 31 counts of aggravated harassment in the second degree (§ 240.30[1][a] ). By pleading guilty, defendant forfeited his present contention that County Court erred in denying his motion pursuant to CPL 200.20 to sever the aggravated harassment counts from the remaining counts (see People v. Smith, 290 A.D.2d 464, 736 N.Y.S.2d 243, lv. denied 98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10; People v. Rivera, 267 A.D.2d 40, 699 N.Y.S.2d 675). In any event, we conclude that defendant's contention lacks merit. The proof underlying the aggravated harassment counts was “material and admissible as evidence in chief upon a trial” with respect to the remaining counts because of its bearing on the issues of defendant's intent and whether the sexual acts were consensual (200.20[2][b] ), and thus the motion was properly denied (see People v. Mullins, 247 A.D.2d 885, 886, 668 N.Y.S.2d 799, lv. denied 92 N.Y.2d 928, 680 N.Y.S.2d 469, 703 N.E.2d 281; People v. Cobo, 245 A.D.2d 72, 666 N.Y.S.2d 123, lv. denied 91 N.Y.2d 1006, 676 N.Y.S.2d 134, 698 N.E.2d 963).
Also contrary to the contention of defendant, the court properly denied his suppression motion. Although defendant asked the police whether he needed an attorney, that question does not constitute an unequivocal request for counsel (see People v. Hinchy, 170 A.D.2d 997, 998, 566 N.Y.S.2d 423, lv. denied 78 N.Y.2d 1011, 575 N.Y.S.2d 819, 581 N.E.2d 1065). In any event, the record establishes that defendant voluntarily accompanied the police to the police station and waived his right to the presence of counsel (see People v. Davis, 75 N.Y.2d 517, 522-523, 554 N.Y.S.2d 460, 553 N.E.2d 1008).
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
MEMORANDUM:
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Decided: December 30, 2004
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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