PEOPLE v. EDWARDS (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65 [2] ) and wilful violation of health laws (Public Health Law § 12-b [2] ).   Defendant contends that County Court erred in refusing to suppress his statements to investigators from the Attorney General's office on the ground that the statements were made in violation of his right to counsel.   We reject that contention.  “The suppression court's credibility determinations and choice between conflicting inferences to be drawn from the proof are granted deference and will not be disturbed unless unsupported by the record” (People v. Kuklinski, 24 A.D.3d 1036, 1036, 805 N.Y.S.2d 729, lv. denied 7 N.Y.3d 758, 819 N.Y.S.2d 883, 853 N.E.2d 254).   Here, the record supports the court's determination that the comments of defendant that his union representative and a friend who is a Sheriff's Deputy advised him not to speak to the police and his comment that he did not have an attorney and could not afford one did not constitute an unequivocal assertion of his right to counsel (see generally People v. Glover, 87 N.Y.2d 838, 637 N.Y.S.2d 683, 661 N.E.2d 155;  People v. Fridman, 71 N.Y.2d 845, 527 N.Y.S.2d 737, 522 N.E.2d 1035;  People v. Hicks, 69 N.Y.2d 969, 516 N.Y.S.2d 648, 509 N.E.2d 343, rearg. denied 70 N.Y.2d 796, 522 N.Y.S.2d 113, 516 N.E.2d 1226;  People v. Dehmler, 188 A.D.2d 1056, 591 N.Y.S.2d 918, lv. denied 81 N.Y.2d 1013, 600 N.Y.S.2d 201, 616 N.E.2d 858).   Following those comments, defendant “ ‘clearly and unambiguously’ expressed his desire to continue the interview without the assistance of counsel” (People v. Twillie, 28 A.D.3d 1236, 1237, 813 N.Y.S.2d 626, lv. denied 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1290, quoting Glover, 87 N.Y.2d at 839, 637 N.Y.S.2d 683, 661 N.E.2d 155).

 We also reject defendant's contention that the court abused its discretion in refusing to give a missing witness charge.  “[D]efendant did not establish that [the missing witness in question] was in a position to see or hear any of the events at issue, and thus to provide material testimony as to whether or not they occurred” (People v. Ortiz, 44 A.D.3d 364, 365, 844 N.Y.S.2d 7, lv. denied 9 N.Y.3d 1008, 850 N.Y.S.2d 396, 880 N.E.2d 882;  see People v. Pereau, 45 A.D.3d 978, 981, 845 N.Y.S.2d 536, lv. denied 9 N.Y.3d 1037, 852 N.Y.S.2d 22, 881 N.E.2d 1209).

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

MEMORANDUM: