| People v Flecha |
| 2007 NY Slip Op 07190 [43 AD3d 1385] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Luis Flecha,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedNovember 19, 2005. The judgment convicted defendant, upon a nonjury trial, of assault in thefirst degree, assault in the second degree (three counts), and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by reversing that part convicting defendant of assault in thesecond degree under count two of the indictment and dismissing that count of the indictment andas modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a bench trial ofone count each of assault in the first degree (Penal Law § 120.10 [1]) and endangering thewelfare of a child (§ 260.10 [1]), and three counts of assault in the second degree (§120.05 [4], [8], [9]). County Court properly refused to suppress defendant's statements to thepolice. The record of the suppression hearing establishes that defendant voluntarily accompaniedtwo officers to the Public Safety Building, that he was never handcuffed or otherwise restrained,and that the initial interview was not accusatory. "Under these circumstances, a reasonableperson innocent of any crime would not have believed that he or she was in custody, and thus[Miranda] warnings were not required" (People v Dozier, 32 AD3d 1346, 1346 [2006], lv dismissed8 NY3d 880 [2007]; see People v Tankleff, 199 AD2d 550, 552 [1993], affd 84NY2d 992 [1994]; People vVandunk, 2 AD3d 1058 [2003], lv denied 3 NY3d 742 [2004]). "Because theinitial statement was not the product of pre-Miranda custodial interrogation, thepost-Miranda detailed confession given by defendant cannot be considered the fruit of thepoisonous tree" (People v Flecha, 195 AD2d 1052, 1053 [1993]).
The evidence, viewed in the light most favorable to the People (see People v Contes,60 NY2d 620, 621 [1983]), is legally sufficient to support the conviction of assault in the firstdegree. The intent of defendant to cause serious injury "may be inferred from his conduct, thesurrounding circumstances, and the medical evidence" (People v White, 216 AD2d 872,873 [1995], lv denied 86 NY2d 805 [1995]; see People v Watson, 269 AD2d755, 756 [2000], lv denied 95 NY2d 806 [2000]). Defendant failed to preserve for ourreview his contention that the verdict is inconsistent insofar as the court in this bench trial foundhim guilty of both intentionally and recklessly causing serious physical injury by means of thesame dangerous instrument (see CPL 470.05 [2]; see generally People v [*2]Carter, 7NY3d 875, 876 [2006]; People v Garner, 174 AD2d 1028, 1029 [1991], lvdenied 78 NY2d 966 [1991]), and we decline to exercise our power to review that contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
We note, however, that assault in the second degree under the second count of theindictment (Penal Law § 120.05 [4]) is a lesser included offense of assault in the firstdegree under Penal Law § 120.10 (1) (see People v Green, 56 NY2d 427, 435[1982], rearg denied 57 NY2d 775 [1982]), and therefore should have been consideredonly in the alternative as an inclusory concurrent count of assault in the first degree (seeCPL 300.30 [4]; 300.40 [3] [b]; People v Fort, 292 AD2d 821 [2002], lv denied98 NY2d 710 [2002]). We therefore modify the judgment accordingly. The sentence is notunduly harsh or severe. Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.