| People v Brown |
| 2014 NY Slip Op 00370 [113 AD3d 785] |
| January 22, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tyreen Brown, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M.Lieberman, and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered October 31, 2011, convicting him of manslaughter in the firstdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Tomei, J.), of that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed;as so modified, the judgment is affirmed, and the matter is remitted to the SupremeCourt, Kings County, for resentencing in accordance herewith.
Contrary to the defendant's contention, the Supreme Court properly denied thatbranch of his omnibus motion which was to suppress statements he made to lawenforcement officials after he was advised of his Miranda rights (see Mirandav Arizona, 384 US 436 [1966]). A court generally must look to the totality of thecircumstances to determine the voluntariness of an inculpatory statement (see Peoplev Anderson, 42 NY2d 35, 38 [1977]; People v Gega, 74 AD3d 1229, 1230-1231 [2010]). "Thefactors to be examined in determining the totality of the circumstances surrounding adefendant's confession include the duration and conditions of detention, the attitude ofthe police toward the defendant, and the age, physical state, and mental state of thedefendant" (People v Gega, 74 AD3d at 1230-1231; see People v Baker,208 AD2d 758, 758-759 [1994]). "Where, as here, a person in police custody was issuedMiranda warnings and waived those rights voluntarily and intelligently, 'it is notnecessary to repeat the warnings prior to subsequent questioning within a reasonable timethereafter, so long as the custody has remained continuous' " (People v Petronio, 34 AD3d602, 604 [2006], quoting People v Glinsman, 107 AD2d 710, 710 [1985]).The record supports the Supreme Court's determination that, under the circumstancespresented here, the defendant's statements were not involuntary (see People vGega, 74 AD3d at 1230-1231; People v Petronio, 34 AD3d at 604;People v Glinsman, 107 AD2d at 710; cf. People v Zappulla, 282 AD2d696 [2001]).
However, the defendant is entitled to be resentenced. Certain remarks made by theSupreme Court demonstrate that it improperly considered the crime of which thedefendant was [*2]acquitted as a basis for sentencing (see People v Grant, 94 AD3d1139, 1141-1142 [2012]; People v Pacquette, 73 AD3d 1088 [2010]; People v Romero, 71 AD3d795 [2010]; People vSchrader, 23 AD3d 585 [2005]; People v Santiago, 277 AD2d 258, 259[2000]).
The defendant's contention that the sentence imposed was excessive need not bereached in light of our determination.
The defendant's challenge to the admission of certain photographs is unpreserved forappellate review.
The defendant's contention that he received ineffective assistance of counsel iswithout merit. Dillon, J.P., Dickerson, Austin and Sgroi, JJ., concur.