NY appeals court upholds conviction in burglary case

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A state appeals court has upheld a conviction in a burglary case and ruled that the defendant did not unequivocally invoke his right to an attorney.

Defendant Raciel Dearmas, 46, pleaded guilty to attempted second-degree burglary in February 2019 in state Supreme Court, in Monroe County before Justice Judith A. Sinclair.

Dearmas was sentenced to a maximum of six years, seven months, and 23 days in state prison.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, unanimously affirmed the conviction.

Initially, the Fourth Department ruled, and the prosecutor conceded, that Dearmas did not waive his right to appeal.

The “oral waiver colloquy and the written waiver signed by defendant together mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief,” the court wrote.

“And there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues,” the court wrote.

While the Fourth Department was precluded from reviewing the defendant’s claim that the Sinclair should have suppressed video-recorded statements that Dearmas made to the police after he invoked his right to counsel, the panel nonetheless rejected that contention.

“We conclude that defendant’s remarks did not constitute an unequivocal invocation of his right to counsel,” the court wrote.

Defendant’s comment that “he was going to speak with a lawyer was not an assertion of a desire not to respond to questions without counsel and at most manifested a desire to consult with an attorney about certain issues related to the availability of a plea agreement,” according to the Fourth Department decision.

Dearmas was represented in the appeal by attorney Shirley A. Gorman. Assistant Monroe County District Attorney represented the prosecution.

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