PEOPLE v. WHITE

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

The PEOPLE of the State of New York, Respondent, v. Victor WHITE, Defendant-Appellant.

Decided: May 24, 2007

MAZZARELLI, J.P., MARLOW, GONZALEZ, CATTERSON, KAVANAGH, JJ. Steven Banks, The Legal Aid Society, New York (Robert Budner of counsel), for appellant. Victor White, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Jung Park of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered November 3, 2004, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him to a term of 15 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   The record establishes that defendant was not in custody when he made his first written statement (see People v. Harris, 48 N.Y.2d 208, 215, 422 N.Y.S.2d 43, 397 N.E.2d 733 [1979];  People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970];  see also Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 [1995] ).   Defendant voluntarily agreed to accompany the police to the precinct.   The police did not search, handcuff or otherwise treat him as a suspect, and they brought him to a general meeting area at the police station.   Moreover, it was defendant who initiated the conversation with the officer that culminated in the statement at issue.   At the time he confessed to the homicide, defendant had not yet said anything that was so incriminating that a reasonable person in defendant's position would have assumed himself to be already in custody (see People v. Maldonado, 259 A.D.2d 356, 687 N.Y.S.2d 62 [1999], lv. denied 93 N.Y.2d 1004, 695 N.Y.S.2d 750, 717 N.E.2d 1087 [1999] ).

Defendant's pro se challenge to his guilty plea is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find it to be without merit.

We perceive no basis for reducing the sentence.