| People v Spirles |
| 2016 NY Slip Op 00830 [136 AD3d 1315] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Michelle D. Spirles, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered December 13, 2011. The judgment convicted defendant, upon a jury verdict,of manslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting her, upon a jury verdict, ofmanslaughter in the first degree (Penal Law § 125.20 [1]), defendantcontends that Supreme Court erred in refusing to suppress the statements she made to thefirst police officer who responded to the crime scene, i.e., her home, in response to a 911call. According to defendant, she was subjected to custodial interrogation and was notMirandized. We reject that contention. It is well settled that "both the elements ofpolice 'custody' and police 'interrogation' must be present before law enforcementofficials constitutionally are obligated to provide the procedural safeguards imposedupon them by Miranda" (People v Huffman, 41 NY2d 29, 33 [1976]; see People v Anthony, 85AD3d 1634, 1635 [2011], lv denied 17 NY3d 813 [2011]). "Under thecircumstances [presented here], we conclude that a reasonable person, innocent of anycrime, would not have believed that he or she was in police custody but, rather, wouldhave believed that he or she was being interviewed as a witness to a crime" (People v Debo, 45 AD3d1349, 1350 [2007], lv denied 10 NY3d 809 [2008]). Furthermore, the officerasked only preliminary questions in an attempt to identify the victim and determine whathad happened to him, and "[i]t is well established that threshold crime scene inquiriesdesigned to clarify the situation and questions that are purely investigatory in nature donot need to be preceded by Miranda warnings" (People v Shelton, 111 AD3d1334, 1336-1337 [2013], lv denied 23 NY3d 1025 [2014] [internal quotationmarks omitted]). "This determination disposes of defendant's further argument that [her]statement[s] to the investigator [at the police station were] tainted by the alleged illegalityof the [officer's] initial questioning" (People v Coffey, 107 AD3d 1047, 1050 [2013], lvdenied 21 NY3d 1041 [2013]; see People v Oakes, 57 AD3d 1425, 1426 [2008], lvdenied 12 NY3d 786 [2009]).
Defendant failed to preserve for our review her further contention that the courtdeprived her of her right of confrontation by limiting her cross-examination of herlandlord (see People vLiner, 9 NY3d 856, 856-857 [2007], rearg denied 9 NY3d 941 [2007];People v Castor, 99 AD3d1177, 1181 [2012], lv denied 20 NY3d 1010 [2013]), and we decline toexercise our power to review it as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). We otherwise reject defendant's contention that the courtabused its discretion in sustaining the prosecutor's objection to the questioning of thelandlord on cross-examination concerning possible fraud by the witness. "Although awitness may be questioned about prior bad acts which bear upon his [or her] credibility,the questions must be asked in good faith and must have a basis in fact" (People vSteele, 168 AD2d 937, 938 [1990], lv denied 77 NY2d 967 [1991]) and,here, defense counsel failed to establish that she had a good-faith basis for the questionsat issue (see People vLester, 83 AD3d 1578, 1578-1579 [2011], lv denied 17 NY3d 818[2011]; People v Dellarocco, 115 AD2d 904, 905 [1985], lv denied [*2]67 NY2d 941 [1986]).
Defendant failed to preserve for our review her contention that the prosecutorengaged in several instances of misconduct during summation inasmuch as she failed toobject to any of those instances (see People v McEathron, 86 AD3d 915, 916 [2011], lvdenied 19 NY3d 975 [2012]). In any event, the challenged comments were" 'either a fair response to defense counsel's summation or fair comment on theevidence' " (People vGreen, 60 AD3d 1320, 1322 [2009], lv denied 12 NY3d 915 [2009];see generally People v Halm, 81 NY2d 819, 821 [1993]).
Defendant further contends that the court failed to conduct an audibility hearing priorto ruling on the admissibility of a recording of a witness's 911 call. That contention isbelied by the record, however, which establishes that the court reviewed the recording inopen court with the attorneys present and concluded that it was admissible (see e.g.People v Lubow, 29 NY2d 58, 68 [1971]). Contrary to defendant's furthercontention, the court properly determined that the recording was not "so inaudible andindistinct that the jury would have to speculate concerning its contents" (People vCleveland, 273 AD2d 787, 788 [2000], lv denied 95 NY2d 864 [2000];see People v Leeson, 299 AD2d 919, 919 [2002], lv denied 99 NY2d 560[2002]).
We reject defendant's contention that the court abused its discretion in curtailingdefense counsel's cross-examination of the officers during the suppression hearing.Defense counsel's questions were not relevant to the suppression issues before the court(see generally People vColvin, 112 AD3d 1348, 1348-1349 [2013], lv denied 22 NY3d 1155[2014]; People v Agostini,84 AD3d 1716, 1717 [2011], lv denied 17 NY3d 857 [2011]; People v Rutley, 57 AD3d1497, 1497 [2008], lv denied 12 NY3d 821 [2009]). Finally, we rejectdefendant's contention that the cumulative effect of the court's alleged errors deprivedher of a fair trial (see People vMcKnight, 55 AD3d 1315, 1317 [2008], lv denied 11 NY3d 927[2009]; People vWurthmann, 26 AD3d 830, 831 [2006], lv denied 7 NY3d 765 [2006]).Present—Whalen, P.J., Smith, Centra, Carni and Scudder, JJ.