| People v Page |
| 2009 NY Slip Op 04752 [63 AD3d 506] |
| June 11, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Tyreek Page, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (David M. Cohn of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J., at suppression hearing;Ronald A. Zweibel, J., at jury trial and sentence), rendered March 15, 2001, convictingdefendant of murder in the second degree (two counts), attempted murder in the second degree,assault in the first degree, criminal use of a firearm in the first degree, criminal possession of aweapon in the second degree and reckless endangerment in the first degree, and sentencing himto an aggregate term of 60 years to life, unanimously modified, as a matter of discretion in theinterest of justice, to the extent of directing that all sentences be served concurrently, resulting ina new aggregate term of 25 years to life, and otherwise affirmed.
Defendant's arguments that the court erred in failing to suppress allegedly custodialstatements made to the police before he received his Miranda warnings, as well asstatements he made after he received those warnings, are unpreserved and we decline to reviewthem in the interest of justice. The hearing court did not "expressly decide[ ]" (CPL 470.05 [2])these issues (see People v Turriago, 90 NY2d 77, 83-84 [1997]). On the contrary, whilethe court made reference to the question of custody, it expressly stated that no such issue wasbefore it at the hearing, since defendant was only challenging the legality of the police entry intocertain premises (an issue not pursued on appeal). As an alternative holding, we also rejectdefendant's claims on the merits. With respect to his pre-Miranda statements, areasonable person in defendant's position, innocent of any wrongdoing, would not have believedthat the interrogation was custodial (see People v Yukl, 25 NY2d 585 [1969], certdenied 400 US 851 [1970]; Peoplev DeJesus, 32 AD3d 753 [2006], lv denied 8 NY3d 879 [2007]). Althoughdefendant was initially seized and handcuffed by parole officers, police detectives immediatelyremoved the handcuffs and clearly conveyed to defendant that the detention had terminated,whereupon defendant agreed to accompany the detectives to be interviewed as a potentialwitness. In any event, regardless of the admissibility of the pre-Miranda statements,there was a definite, pronounced break in the interrogation so that the post-Mirandastatements were admissible (see Peoplev Paulman, 5 NY3d 122, 130-131 [2005]).
Defendant's argument that his convictions for intentional murder (under a transferred [*2]intent theory) and depraved indifference murder should be reversedbecause the counts were not submitted to the jury in the alternative is unpreserved and wedecline to review it in the interest of justice. As an alternative holding, we also reject theargument on the merits. Where, as here, more than one potential victim was present at theshooting, a defendant may be convicted of both counts because he or she may have possesseddifferent states of mind with regard to different potential victims (see People v Hamilton, 52 AD3d227, 228 [2008], lv denied 11 NY3d 737 [2008]; People v Monserate, 256AD2d 15 [1998], lv denied 93 NY3d 855 [1999]).
We find the sentence excessive to the extent indicated. Concur—Tom, J.P., Nardelli,Catterson, Renwick and Richter, JJ.