PEOPLE v. JOHNSON (2008)

 Defendant appeals from a judgment convicting him upon a plea of guilty of sodomy in the first degree (Penal Law former § 130.50 [1] ).   Defendant failed to preserve for our review his contention that the plea was not knowingly, voluntarily and intelligently entered inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v. Aguayo, 37 A.D.3d 1081, 829 N.Y.S.2d 350, lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660;  see also People v. Davis, 37 A.D.3d 1179, 829 N.Y.S.2d 791, lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663).   This case does not fall within the rare exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Contrary to defendant's further contention, Supreme Court properly refused to suppress the identification testimony of the victim.   Multiple pretrial identification procedures are not inherently suggestive (see generally People v. Daniels, 202 A.D.2d 987, 612 N.Y.S.2d 984), and the record supports the court's determination that the photo array and subsequent lineup “were not so suggestive as to create the substantial likelihood that defendant would be misidentified” (People v. Munoz, 223 A.D.2d 370, 370, 636 N.Y.S.2d 313, lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623;  see People v. Sorenson, 112 A.D.2d 1016, 1017, 493 N.Y.S.2d 16, lv. denied 66 N.Y.2d 767, 497 N.Y.S.2d 1042, 488 N.E.2d 128).

 The court also properly refused to suppress defendant's statement to the police.   Contrary to the contention of defendant, the statement was not rendered involuntary by the officers' false assertions that the victim had identified him as the perpetrator (see People v. Everson, 262 A.D.2d 1059, 694 N.Y.S.2d 252, lv. denied 94 N.Y.2d 903, 707 N.Y.S.2d 387, 728 N.E.2d 986;  People v. Foster, 193 A.D.2d 692, 598 N.Y.S.2d 36, lv. denied 82 N.Y.2d 717, 602 N.Y.S.2d 815, 622 N.E.2d 316), or by the police chief's suggestion that defendant would “feel better” if he admitted his guilt (see People v. Hoyer, 140 A.D.2d 853, 528 N.Y.S.2d 440, lv. denied 72 N.Y.2d 919, 532 N.Y.S.2d 853, 529 N.E.2d 183).   The contention of defendant that his statement was the product of an illegal detention is not preserved for our review (see People v. Hyla, 291 A.D.2d 928, 738 N.Y.S.2d 147, lv. denied 98 N.Y.2d 652, 745 N.Y.S.2d 510, 772 N.E.2d 613), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   We reject the further contention of defendant that he was deprived of due process based on the failure of the police to videotape the interrogation (see People v. Davis, 48 A.D.3d 1086, 1087-1088, 850 N.Y.S.2d 307).   Finally, we conclude that the court properly denied defendant's requests for the assignment of new counsel.   Defendant “did not establish a serious complaint concerning defense counsel's representation and thus did not suggest a serious possibility of good cause for substitution [of counsel]” (People v. Randle [appeal No. 2], 21 A.D.3d 1341, 1341, 801 N.Y.S.2d 188, lv. denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165 [internal quotation marks omitted];  see People v. Thomas, 19 A.D.3d 1037, 796 N.Y.S.2d 288, lv. denied 5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: