PEOPLE v. TWILLIE

Reset A A Font size: Print

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Donte Sharae TWILLIE, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  HURLBUTT, J.P., GORSKI, MARTOCHE, SMITH, AND GREEN, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of one count of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10[1] ) and three counts of robbery in the second degree (§ 160.10 [1] ).   We reject the contention of defendant that Supreme Court erred in refusing to suppress his statement to the police on the ground that the statement was made in violation of his right to counsel.  “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).   The record supports the court's determination that the comment of defendant that he might need a lawyer “was not an unequivocal assertion of his right to counsel when viewed in context of the totality of circumstances, particularly with respect to events following the comment itself” (People v. Powell, 304 A.D.2d 410, 411, 757 N.Y.S.2d 297, lv. denied 1 N.Y.3d 578, 775 N.Y.S.2d 794, 807 N.E.2d 907;  see People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155).   Following that comment, defendant “clearly and unambiguously” expressed his desire to continue the interview without the assistance of counsel, and the court properly concluded that the right to counsel did not attach before defendant made his statement to the police (Glover, 87 N.Y.2d at 839, 637 N.Y.S.2d 683, 661 N.E.2d 155;  see Kuklinski, 24 A.D.3d at 1037, 805 N.Y.S.2d 729;  Powell, 304 A.D.2d at 410-411, 757 N.Y.S.2d 297).

Contrary to defendant's further contentions, the court properly charged the jury that defendant was an interested witness as a matter of law and properly refused to charge the jury that a prosecution witness was an interested witness as a matter of law (see People v. Adams, 278 A.D.2d 920, 921, 719 N.Y.S.2d 428, lv. denied 96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205;  People v. Arkim, 179 A.D.2d 1019, 580 N.Y.S.2d 120, lv. denied 79 N.Y.2d 997, 584 N.Y.S.2d 451, 594 N.E.2d 945).  “The court gave a balanced charge, properly instructing the jurors that they could consider the interest or bias of any witness in assessing credibility” (Adams, 278 A.D.2d at 921-922, 719 N.Y.S.2d 428).   Finally, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: