| People v McClough |
| 2016 NY Slip Op 00383 [135 AD3d 880] |
| January 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Diquan McClough, Appellant. |
Andrew E. MacAskill, Westbury, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Jason R. Richards and JosephMogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Delligatti, J.), rendered December 17, 2013, convicting him of murder in the seconddegree and criminal possession of a weapon in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearingpursuant to a stipulation in lieu of motions, of the suppression of the defendant'sstatement to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was not entitled to suppression of a statement he made to lawenforcement officials following his arrest and before he was advised of hisMiranda rights (see Miranda v Arizona, 384 US 436 [1966]). After adetective succinctly and accurately answered the defendant's inquiry if he was underarrest or being brought in for questioning, the defendant asked, "How could you arrestme without the gun?" The Supreme Court properly determined that the inculpatorystatement was not prompted by the functional equivalent of custodial interrogation, andthus, was not subject to suppression (see Rhode Island v Innis, 446 US 291,300-301 [1980]; Miranda v Arizona, 384 US 436 [1966]; People v Davis, 32 AD3d445 [2006]; People v Harrison, 251 AD2d 681, 682 [1998]; People vWest, 237 AD2d 315 [1997]; People v Pryor, 194 AD2d 749 [1993]; cf. People v Tavares-Nunez, 87AD3d 1171 [2011]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nonetheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The fact thatthe main prosecution witness had a criminal background and testified pursuant to acooperation agreement did not render her testimony incredible (see People v Bernard, 100AD3d 916 [2012]; People vJean-Marie, 67 AD3d 704 [2009]; People v Manley, 60 AD3d 870 [2009]; People vAdams, 302 AD2d 601 [2003]).
[*2] TheSupreme Court providently exercised its discretion in denying the defendant's request forreassignment of counsel (seePeople v Porto, 16 NY3d 93, 99-100 [2010]; People v Ward, 121 AD3d1026 [2014]; People vAlexander, 100 AD3d 649 [2012]; People v Ayuso, 80 AD3d 708 [2011]). Additionally, theSupreme Court providently exercised its discretion in denying the defendant's request foran adjournment of the sentencing hearing (see People v Singleton, 41 NY2d 402[1977]; People v Davis, 118AD3d 906 [2014]; People v Hardy, 294 AD2d 516 [2002]). Dillon, J.P.,Dickerson, Miller and Duffy, JJ., concur.