| People v Oakes |
| 2008 NY Slip Op 10301 [57 AD3d 1425] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Martin L. Oakes,Appellant. |
—[*1]
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.), rendered January29, 2007. The judgment convicted defendant, upon a jury verdict, of manslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]). County Court properly refused tosuppress defendant's statements to the police. The record of the suppression hearing establishes thatdefendant was not in custody when he made his initial statement to the police at the home of hisgirlfriend, and thus Miranda warnings were not required (see generally People v Brown, 52 AD3d 1175, 1176 [2008]). "Becausethe initial 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 record of thesuppression hearing further establishes that, although defendant was intoxicated at the time he made thestatements, he "was not intoxicated to such a degree that he was incapable of voluntarily, knowingly,and intelligently waiving his Miranda rights" (People v Downey, 254 AD2d 794, 795[1998], lv denied 92 NY2d 1031 [1998]).
We reject the contention of defendant that he was denied his right to be present at a material stageof the trial when the court conducted an in camera interview of a sworn juror, in the presence of theprosecutor and defense counsel but in the absence of defendant, to determine whether that sworn jurorwas grossly unqualified to serve. "Whether a seated juror is grossly unqualified to serve is a legaldetermination . . . , and as such the presence of counsel at a hearing to determine a juror'squalification is adequate" (People v Harris, 99 NY2d 202, 212 [2002]; see also People vMullen, 44 NY2d 1, 5-6 [1978]; People v Zeigler, 305 AD2d 1100 [2003], lv denied100 NY2d 626 [2003]). Defendant failed to preserve for our review his further contentions thatthe court erred in failing to discharge that juror (see People v Kelly, 5 NY3d 116, 120 n 2 [2005]), that the court'sSandoval ruling constituted an abuse of discretion (see People v Gonzalez, 52 AD3d 1228, 1229 [2008], lv denied11 NY3d 788 [2008]), and that the verdict is repugnant (see [*2]People v Alfaro, 66 NY2d 985, 987 [1985]). We decline toexercise our power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Defendant also failed to preserve for our review his contention thatthe evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10,19 [1995]). Contrary to the further contention of defendant, we conclude that he received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Finally, the sentenceis not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski,JJ.