PEOPLE v. SCACCIA

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Ronald A. SCACCIA, Defendant-Appellant.

Decided: April 30, 2004

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND LAWTON, JJ. Scaccia Law Firm, Syracuse (Robert A. Traylor of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a guilty plea of driving while intoxicated as a misdemeanor (Vehicle and Traffic Law § 1192 [3];  § 1193[1][b] ).  Contrary to the contention of defendant, Supreme Court properly determined after a hearing that “[t]he vehicle stop was justified by the traffic violations observed by the officers” (People v. Dunnigan, 1 A.D.3d 930, 931, 767 N.Y.S.2d 550).

 Defendant further contends that, because he was represented by counsel on an unrelated pending charge, the police questioning at the time of the stop was in violation of the Rogers rule (see People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709), as interpreted by People v. Burdo, 91 N.Y.2d 146, 667 N.Y.S.2d 970, 690 N.E.2d 854.   Defendant also contends that, because he requested an attorney when he was stopped by the police, evidence of his admission to the police that he had been drinking should have been suppressed, along with evidence concerning the field sobriety tests that were conducted.   By pleading guilty without obtaining a ruling on those aspects of his suppression motion, defendant forfeited his right to raise them on appeal (see People v. Hibbert, 291 A.D.2d 866, 737 N.Y.S.2d 321, lv. denied 98 N.Y.2d 637, 744 N.Y.S.2d 766, 771 N.E.2d 839;  People v. McIntosh, 274 A.D.2d 968, 711 N.Y.S.2d 655, lv. denied 95 N.Y.2d 906, 716 N.Y.S.2d 647, 739 N.E.2d 1152).   In any event, we conclude that they are without merit.   We note in particular that the Rogers rule, as interpreted by Burdo, 91 N.Y.2d at 149-150, 667 N.Y.S.2d 970, 690 N.E.2d 854, applies only when a defendant is in custody on an unrelated charge to which the indelible right to counsel has attached.   Because defendant was not in custody on the pending unrelated charge when he was questioned by the police herein, there was no derivative right to counsel, even though the police knew that defendant was represented by counsel on that charge when they questioned him (see People v. Steward, 88 N.Y.2d 496, 499-500, 646 N.Y.S.2d 974, 670 N.E.2d 214, rearg. denied 88 N.Y.2d 1018, 649 N.Y.S.2d 384, 672 N.E.2d 610).   The remaining contentions raised by defendant on appeal do not survive his guilty plea (see generally People v. Hansen, 95 N.Y.2d 227, 230-232, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755).

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

MEMORANDUM: