THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. GARY GRAHAM DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. GARY GRAHAM, DEFENDANT–APPELLANT.

KA 13–00648

Decided: September 29, 2017

PRESENT:  WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ. MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN 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 rape in the first degree (Penal Law

§ 130.35 [2] ) and rape in the third degree (§ 130.25[2] ).  Defendant contends that Supreme Court failed to make a minimal inquiry into his requests for new counsel, and that he showed good cause for substitution.  We reject that contention.  A defendant may be entitled to new assigned counsel “upon showing ‘good cause for a substitution,’ such as a conflict of interest or other irreconcilable conflict with counsel” (People v. Sides, 75 N.Y.2d 822, 824).  Where a defendant makes a “seemingly serious request[ ]” for new assigned counsel, the court is obligated to “make some minimal inquiry” (id. at 824–825;  see People v. Porto, 16 NY3d 93, 99–100;  People v. Gibson, 126 AD3d 1300, 1301–1302).  Here, the record establishes that “the court afforded defendant the opportunity to express his objections concerning defense counsel, and the court thereafter reasonably concluded that defendant's objections were without merit” (People v. Bethany, 144 AD3d 1666, 1669, lv denied 29 NY3d 996).

We reject defendant's contention that the court erred in refusing to suppress the statements and the DNA sample that he gave to the police.  We agree with the court that defendant was not in custody when he gave statements to the police and thus Miranda warnings were not required (see People v. McGuay, 120 AD3d 1566, 1567, lv denied 25 NY3d 1167;  see generally People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851).  Defendant voluntarily drove himself to the police station, was not handcuffed or restrained in any way while at the station, was advised he could leave at any time, and was allowed to go home after only approximately half an hour of questioning (see People v. Brown, 111 AD3d 1385, 1385–1386, lv denied 22 NY3d 1155).  We further agree with the court that defendant voluntarily agreed to give a DNA sample (see People v. Parker, 133 AD3d 1300, 1300, lv denied 27 NY3d 1154, reconsideration denied 28 NY3d 1030;  People v. Dallas, 119 AD3d 1362, 1363, lv denied 24 NY3d 1083).

Mark W. Bennett

Clerk of the Court