| People v Zuke |
| 2011 NY Slip Op 06683 [87 AD3d 1290] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy Zuke,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered June 16,2009. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofmanslaughter in the second degree (Penal Law § 125.15 [1]), defendant contends thatCounty Court erred in refusing to suppress his second statement to the police, which was giveneight months after defendant had given a written statement to the police following an initialinterview by them. That contention, however, is not properly before us. "[A]lthough the courtissued a bench decision with respect to [those parts of defendant's omnibus motion seeking tosuppress his statements to the police,] the exception set forth in CPL 710.70 (2) allowingappellate review with respect to orders that finally den[y] a motion to suppress evidence is notapplicable because defendant pleaded guilty before the court issued such an order" (People v Ellis, 73 AD3d 1433,1433-1434 [2010], lv denied 15 NY3d 851 [2010] [internal quotation marks omitted]; see People v McGinnis, 83 AD3d1594 [2011]). In addition, defendant's contention that the court should have suppressed thestatement on the ground that the People presented insufficient evidence at the suppressionhearing is raised for the first time on appeal and is therefore unpreserved for our review (see People v Poole, 55 AD3d1354, 1355 [2008], lv denied 11 NY3d 929 [2009]; People v Brooks, 26 AD3d 739,740 [2006], lv denied 6 NY3d 846 [2006], lv denied upon reconsideration 7NY3d 810 [2006]). In any event, we conclude that suppression was not warranted on the groundraised by defendant before the suppression court inasmuch as the record establishes thatdefendant was not in custody when he gave his second statement to the police and thusMiranda warnings were not required at that time (see People v Stokes, 212 AD2d986 [1995], lv denied 86 NY2d 741 [1995]; People v Schultz, 176 AD2d 1239[1991], lv denied 79 NY2d 832 [1991]; see generally People v Paulman, 5 NY3d 122, 129 [2005];People v Yukl, 25 NY2d 585, 588-589 [1969], cert denied 400 US 851 [1970]).Present—Scudder, P.J., Smith, Carni, Lindley and Martoche, JJ.