| People v Gutierrez |
| 2004 NYSlipOp 09447 |
| December 21, 2004 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v Jorge Gutierrez, Appellant. |
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Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered January 29, 2003, convicting defendant, after a jury trial, of criminal possession of a forged instrument in the second degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). The officer was not required to administer Miranda warnings because defendant, who was detained pursuant to a routine traffic stop, was not in custody for Miranda purposes (People v Mathis, 136 AD2d 746, 747, lv denied 71 NY2d 899 [1988], citing Berkemer v McCarty, 468 US 420 [1984]).
During trial, the court properly exercised its discretion in precluding defendant from eliciting the absence of Miranda warnings. Since, as noted, such warnings were not required, this was not a proper issue for the jury. Since there was no other factual issue raised at trial concerning the voluntariness of defendant's statement, the court was not required to instruct the jury on that subject (see People v Cefaro, 23 NY2d 283, 288-289 [1968]; People v Taylor, 135 AD2d 202 [1988], lv denied 71 NY2d 1034 [1988]). Concur—Nardelli, J.P., Andrias, Ellerin, Marlow and Sweeny, JJ.