THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. REGINALD PIERCE DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. REGINALD O. PIERCE, DEFENDANT–APPELLANT.

KA 14–01526

Decided: September 30, 2016

PRESENT:  SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law

§ 120.05 [2] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).  Initially, we note that, “[b]y pleading guilty, defendant forfeited review of [Supreme] Court's Molineux ruling” (People v. Brown, 305 A.D.2d 1068, 1068, lv denied 100 N.Y.2d 579).  Contrary to defendant's contention, the court properly refused to suppress his statements to the police inasmuch as the record establishes that defendant spoke “freely and unguardedly” in the presence of two different police officers after voluntarily waiving his Miranda rights (People v. Cascio, 79 AD3d 1809, 1811, lv denied 16 NY3d 893;  see People v. Carbonaro, 134 AD3d 1543, 1547–1548, lv denied 27 NY3d 994, reconsideration denied 27 NY3d 1149;  People v. Collins, 43 AD3d 1338, 1339, lv denied 9 NY3d 1005).  Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court