| People v Cheatom |
| 2008 NY Slip Op 10330 [57 AD3d 1447] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael Cheatom,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered April 23,2007. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree,criminal mischief in the fourth degree and criminal possession of stolen property in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia,burglary in the second degree (Penal Law § 140.25 [2]) and criminal mischief in the fourthdegree (§ 145.00 [1]). We reject the contention of defendant that County Court erred in refusingto suppress his statements to the police. With respect to the first statement, we conclude that the courtproperly determined that defendant was not in custody when the statement was made and thus that noMiranda warnings were required. It is well settled that "[t]he standard for assessing a suspect'scustodial status is whether a reasonable person innocent of any wrongdoing would believe that he orshe was not free to leave" (People vPaulman, 5 NY3d 122, 129 [2005]; see People v Harris, 48 NY2d 208, 215[1979]; People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]),and we conclude that a reasonable person in defendant's circumstances who was innocent of anywrongdoing would have felt free to leave (see generally People v Hardy, 223 AD2d 839, 840[1996]). With respect to the second statement, we conclude that the record supports the court'sdetermination that defendant spontaneously made that statement, i.e., it was not "the product of 'expressquestioning or its functional equivalent' " (People v Bryant, 59 NY2d 786, 788 [1983],rearg dismissed 65 NY2d 638 [1985], quoting Rhode Island v Innis, 446 US 291,300-301 [1980]), and thus Miranda warnings also were not required with respect to thatstatement.
Contrary to the further contention of defendant, the evidence is legally sufficient to support theconviction of criminal mischief inasmuch as the People established that he "[i]ntentionally damage[d]property of another person" (Penal Law § 145.00 [1]; see People v Baroody, 221AD2d 980 [1995], lv denied 87 NY2d 970 [1996]). " 'Property is that of another person, forpurposes of [Penal Law article 145], if anyone, other than the defendant, has a possessory orproprietary interest in such tangible property. Actual legal title need not be in such other person' "(Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law §145.00). Here, the People presented evidence from which [*2]the jurycould infer that someone other than defendant had a proprietary or possessory interest in the propertyat issue.
We reject the contention of defendant that the court erred in denying his request for a waiver of themandatory surcharge. "Although the court erred in determining that it lacked authority pursuant to CPL420.40 (2) to [waive] the mandatory surcharge, we nevertheless conclude that defendant offered 'nocredible and verifiable information establishing that the surcharge would work an unreasonable hardshipon defendant over and above the ordinary hardship suffered by other indigent inmates' " (People vKistner, 291 AD2d 856 [2002]). Defendant failed to preserve for our review his contentionconcerning the jury instruction on recent, exclusive possession of the fruits of a crime (see People v Purdie, 50 AD3d 347[2008], lv denied 10 NY3d 963 [2008]; see generally People v Nunez, 51 AD3d 1398, 1400 [2008], lvdenied 11 NY3d 792 [2008]; People vWiley, 50 AD3d 1546 [2008], lv denied 10 NY3d 965 [2008]). In any event, thatcontention lacks merit because "[t]he court's jury instruction on the permissible inference arising fromrecent, exclusive possession of stolen property in the absence of a 'believable innocent explanation'correctly stated the law" (Purdie, 50 AD3d at 347).
Finally, the sentence is not unduly harsh or severe. Present—Martoche, J.P., Smith, Faheyand Pine, JJ.