PIERCE, REGINALD O., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
739
KA 14-01526
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
REGINALD O. PIERCE, DEFENDANT-APPELLANT.
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.
Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 19, 2014. The judgment
convicted defendant, upon his plea of guilty, of assault in the second
degree and criminal possession of a weapon in the third degree.
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 AD2d 1068, 1068, lv denied 100 NY2d 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.
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court