| People v Martin |
| 2009 NY Slip Op 09493 [68 AD3d 1015] |
| December 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KeithMartin, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Jason P.Weinstein of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Berkowitz,J.), rendered February 22, 2007, convicting him of manslaughter in the first degree, burglary inthe second degree (two counts), tampering with physical evidence (two counts), and petitlarceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing (Kase, J.), of that branch of the defendant's omnibus motion which was tosuppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of manslaughter in the first degree, including disproving his defense of justification,is unpreserved for appellate review (see CPL 470.05; People v Hawkins, 11NY3d 484, 491-492 [2008]; People v Gray, 86 NY2d 10, 20-21 [1995]; People vClinton, 268 AD2d 531 [2000]; People v Vella, 247 AD2d 642, 642-643 [1998]),and we decline to review it in the exercise of our interest of justice jurisdiction. In fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we nevertheless accord greatdeference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt of manslaughter in the first degree was not againstthe weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the evidence was legally insufficient to support hisconviction on one of the counts of burglary in the second degree is also unpreserved for appellatereview (see CPL 470.05; People v Hawkins, 11 NY3d at 491-492; People vGray, 86 NY2d at 20-21; People v Harrison, 2 AD3d 1454, 1455 [2003]), and wedecline to review it in the exercise of our interest of justice jurisdiction. Upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt on that count was notagainst the weight of the evidence (see People v Romero, 7 NY3d at 633; People vBurnett, 205 AD2d 792 [1994]).[*2]
Contrary to the defendant's contention, his statements tolaw enforcement officials were properly admitted into evidence. There is sufficient evidence tosupport the hearing court's conclusion that the defendant was not in police custody when hevoluntarily accompanied police personnel to the police station (see People v Yukl, 25NY2d 585, 589 [1969], cert denied 400 US 851 [1970]; People v Jordan, 21AD3d 385 [2005]; People v Leggio, 305 AD2d 518 [2003]; People v Centano,153 AD2d 494, 495 [1989], affd 76 NY2d 837, 838 [1990]; People v Bailey, 140AD2d 356 [1988]). Additionally, after the defendant was advised of, and waived, hisMiranda rights (see Miranda v Arizona, 384 US 436 [1966]), additionalwarnings were not necessary, as he remained in continuous custody (see People vPetronio, 34 AD3d 602, 604 [2006]; People v Glinsman, 107 AD2d 710 [1985],cert denied 472 US 1021 [1985]). Furthermore, based on the totality of the circumstances(see People v Anderson, 42 NY2d 35 [1977]), including the duration and conditions ofthe defendant's detention, the conduct and demeanor of the police toward the defendant, and theage, physical state, and mental state of the defendant (see People v Baker, 208 AD2d 758[1994]; People v McAvoy, 142 AD2d 605 [1988]; People v Ross, 134 AD2d298, 299-300 [1987]), the defendant's post-Miranda statements were voluntarily given.The County Court found that the defendant did not invoke his right to counsel before makingstatements to the police, and there is no basis to disturb that credibility determination (seePeople v Tissiera, 22 AD3d 611, 611-612 [2005]).
The defendant's remaining contention is unpreserved for appellate review, and we decline toreview it in the exercise of our interest of justice jurisdiction (see People v Morey, 224AD2d 730, 731 [1996]). Covello, J.P., Santucci, Chambers and Hall, JJ., concur.