PEOPLE v. MUCKEY (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered August 18, 2015, convicting defendant upon his plea of guilty of the crime of rape in the first degree.

Defendant was charged in an indictment with two counts of predatory sexual assault against a child and one count of sexual abuse in the first degree after he had sexual intercourse with a seven-year-old female.  Prior to trial, his counsel submitted a letter to County Court requesting it to conduct a taint hearing to ascertain if the seven-year-old victim had been unduly influenced by her mother to make the accusations against defendant.  County Court denied this request.  Thereafter, defendant pleaded guilty to rape in the first degree in satisfaction of the indictment and also waived his right to appeal, both orally and in writing.  He was sentenced, in accordance with the terms of the plea agreement, to eight years in prison to be followed by 10 years of postrelease supervision.  Defendant now appeals.

Initially, defendant contends that County Court erred in denying his request for a pretrial taint hearing.  Inasmuch as defendant's challenge is evidentiary in nature, it is precluded by his valid waiver of the right to appeal (see e.g.People v. Shillabeer, 154 A.D.3d 1017, 1018, 35 N.Y.S.3d 598 [2017];  People v. Johnson, 153 A.D.3d 1031, 1031, 60 N.Y.S.3d 580 [2017], lv denied 30 N.Y.3d 980, 67 N.Y.S.3d 583, 89 N.E.3d 1263 [2017];  People v. Hartfield, 151 A.D.3d 1116, 1118, 57 N.Y.S.3d 217 [2017], lv denied 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017];  People v. Cooper, 126 A.D.3d 1046, 1047, 4 N.Y.S.3d 392 [2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ).  Furthermore, although defendant also asserts that his counsel was ineffective due to his failure to successfully persuade County Court to conduct a taint hearing, we do not find on the record before us that defendant was denied meaningful representation (see People v. Hall, 147 A.D.3d 1151, 1152–1153, 47 N.Y.S.3d 147 [2017], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 169, 86 N.E.3d 256 [2017];  People v. Cooper, 126 A.D.3d at 1047–1048, 4 N.Y.S.3d 392).  Although there is no “ ‘express statutory authority for a hearing to determine whether the testimony of [a] child witness[ ] has been tainted by suggestive interviewing techniques,’ a court nonetheless may—‘upon a proper showing’ by the defendant—direct that a pretrial taint hearing be held” (People v. Milford, 118 A.D.3d 1166, 1168, 987 N.Y.S.2d 696 [2014], lv denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014], quoting People v. Nickel, 14 A.D.3d 869, 870–871, 788 N.Y.S.2d 274 [2005], lv denied 4 N.Y.3d 834, 796 N.Y.S.2d 589, 829 N.E.2d 682 [2005] ).  Here, “defendant failed to make a nonspeculative showing of any undue suggestion” (People v. Nickel, 14 A.D.3d at 871, 788 N.Y.S.2d 274) and, consequently, County Court did not abuse its discretion in declining to conduct a taint hearing.

ORDERED that the judgment is affirmed.

Rumsey, J.

McCarthy, J.P., Devine, Aarons and Pritzker, JJ., concur.