| People v Davis |
| 2008 NY Slip Op 00813 [48 AD3d 1086] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Demetrius J.Davis, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered January 19, 2005. The judgment convicted defendant, upon a jury verdict, of burglary inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofburglary in the first degree (Penal Law § 140.30 [3]). We reject the contention of defendantthat Supreme Court erred in refusing to suppress his statements to the police following an allegedde facto arrest without probable cause (cf. People v Hunt, 155 AD2d 957, 958 [1989],lv denied 75 NY2d 814 [1990]). Defendant and his sister willingly accompaniedinvestigators to the police station, where defendant waived his Miranda rights. Defendantwas not handcuffed, did not ask to leave and was questioned for only one hour. Although thequestioning during that time may have been accusatory, that fact alone did not render theinterrogation custodial in nature (seegenerally People v Lunderman, 19 AD3d 1067, 1068-1069 [2005], lv denied 5NY3d 830 [2005]; People v Pulliam, 258 AD2d 681, 682-683 [1999], lv denied93 NY2d 977 [1999]). In any event, we conclude on the record before us that the police hadprobable cause to arrest defendant before he made his inculpatory statements (seegenerally CPL 140.10 [1] [b]; People v Bigelow, 66 NY2d 417, 423 [1985]).
We reject defendant's further contention that the verdict is against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "The jury was entitled toresolve issues of credibility in favor of the People . . . , and it cannot be said that thejury failed to give the evidence the weight it should be accorded" (People v Walek, 28 AD3d 1246,1246 [2006], lv denied 7 NY3d 764 [2006]). We agree with defendant that the courterred in precluding him from presenting evidence concerning his inability to read on the groundthat such evidence constituted psychiatric evidence for which notice was required pursuant toCPL 250.10. Defendant's inability to read is not a " 'condition bearing upon defendant's mentalstate' " (People v Brown, 4 AD3d886, 888 [2004], lv denied 3 NY3d 637 [2004]; see generally People v Little, 24 AD3d 1244, 1245 [2005], lvdenied 6 NY3d 835 [2006]). Defendant demonstrated his ability to read during his testimony,however, and we conclude that the error is harmless (see generally People v Crimmins,36 NY2d 230, 241-242 [1975]).[*2]
Finally, we decline defendant's request that we disavowour prior decisions holding that there is no requirement that the police electronically recordinterrogations. As we previously held, "[t]here is no Federal or State due process requirementthat interrogations and confessions be electronically recorded" (People v Falkenstein, 288AD2d 922, 923 [2001], lv denied 97 NY2d 704 [2002]; see People v Williams, 39 AD3d1200 [2007], lv denied 9 NY3d 853 [2007]; People v Kunz, 31 AD3d 1191[2006], lv denied 7 NY3d 868 [2006]). Present—Hurlbutt, J.P., Smith, Centra,Lunn and Fahey, JJ.