People v. Dupree

242 A.D.2d 895, 665 N.Y.S.2d 601, 1997 N.Y. App. Div. LEXIS 10451

Opinion

Judgment unanimously affirmed. Memorandum: Defendant contends that he was denied effective assistance of counsel only as guaranteed by the Sixth Amendment of the US Constitution and not under the State Constitution (see, People v Claudio, 83 NY2d 76, 79-80, rearg dismissed 88 NY2d 1007), based upon various omissions on the part of defense counsel. Defendant failed to show that “counsel made errors so serious that counsel was not functioning as * * * guaranteed * * * by the Sixth Amendment” and failed to show “that the deficient performance prejudiced the defense” (Strickland v Washington, 466 US 668, 687, reh denied 467 US 1267). Even if the State constitutional standard were to be applied, the result would be no different. Here, “ ‘the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation,’ ” establish that defendant received meaningful representation (People v Rivera, 71 NY2d 705, 708, quoting People v Baldi, 54 NY2d 137, 146-147).

Defendant failed to preserve for our review his contention that his statement to police should have been suppressed as the product of police deception and trickery (see, CPL 470.05 [2]; People v Dunn, 85 NY2d 956). In any event, County Court properly denied the motion to suppress because defendant was not in custody when he made the statement (see, People v Yukl, 25 NY2d 585, mot to amend remittitur denied 26 NY2d 845, rearg denied 26 NY2d 883, cert denied 400 US 851). (Appeal from Judgment of Onondaga County Court, Mulroy, J.—Rape, 1st Degree.) Present—Green, J. P., Pine, Wisner, Balio and Fallon, JJ.