People v. Rice

199 A.D.2d 1054, 608 N.Y.S.2d 135

Opinion

Judgment unanimously reversed as a matter of discretion in the interest of justice, plea vacated and matter remitted to Onondaga County Court for further proceedings on the indictment. Memorandum: Defendant contends that the suppression court erred in denying in part his motion to suppress his oral statements to the police. Great weight must be accorded a suppression court’s determination because of the court’s ability to observe and assess the credibility of a witness (see, People v Prochilo, 41 NY2d 759, 761) and its findings should not be disturbed unless clearly erroneous (see, People v Arm-stead, 98 AD2d 726). We find no reason to disturb the suppression court’s finding that defendant’s statements to the police, while defendant was a patient in the intensive care unit at the hospital, were voluntarily made after he had been given his Miranda warnings and had waived them (see, People v Atkinson, 179 AD2d 1072, lv denied 79 NY2d 997; People v Eastman, 114 AD2d 509, lv denied 67 NY2d 651; People v Pearson, 106 AD2d 588).

Nevertheless, reversal is required because defendant’s plea was induced by the understanding that the sentence would be concurrent with the sentence imposed for defendant’s conviction in People v Rice (199 AD2d 1054 [decided herewith]), which is reversed (see, People v Fuggazzatto, 62 NY2d 862, 863). Although defendant does not raise this issue on appeal, we reach it as a matter of discretion in the interest of justice (see, CPL 470.15 [6]). (Appeal from Judgment of Onondaga County Court, Cunningham, J.—Attempted Murder, 2nd Degree.) Present—Pine, J. P., Balio, Lawton, Doerr and Boehm, JJ.