| People v Leta |
| 2017 NY Slip Op 04719 [151 AD3d 1761] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Lynn Leta,Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo P.C. (Eric M. Dolan ofcounsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Joseph Plukas of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered April 5, 2011. The judgment convicted defendant, upon a nonjury verdict, of criminalpossession of a forged instrument in the second degree (two counts) and identity theft in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her following a nonjury trialof two counts of criminal possession of a forged instrument in the second degree (Penal Law§ 170.25) and one count of identity theft in the second degree(§ 190.79 [1]). The charges arose from defendant's deposit of two forged checksinto her bank account. Defendant contends that the conviction of identity theft is not supportedby legally sufficient evidence because the People did not establish that she assumed the identityof another person. Defendant failed to preserve that contention for our review inasmuch as shemoved for a trial order of dismissal on a different ground (see People v Thomas, 136 AD3d 1390, 1390 [2016], lvdenied 27 NY3d 1140 [2016], denied reconsideration 28 NY3d 974 [2016]) and shefailed to renew the motion after presenting evidence (see People v Graham, 148 AD3d 1517, 1517 [2017]). In any event,we reject that contention (see People vYuson, 133 AD3d 1221, 1221-1222 [2015], lv denied 27 NY3d 1157[2016]).
Contrary to defendant's further contention, we conclude that Supreme Court properly refusedto suppress the statement she made to a police officer without the benefit of Mirandawarnings. The record supports the court's determination that "a reasonable person in defendant'sposition, innocent of any crime, would not have believed that he or she was in custody, and thusMiranda warnings were not required" (People v Lunderman, 19 AD3d 1067, 1068 [2005], lvdenied 5 NY3d 830 [2005]). Based upon the testimony at the suppression hearing, the courtproperly concluded that the relevant factors weighed against a determination that defendant wasin custody (see id. at 1068-1069). Defendant invited the officer into her home, spoke withhim at her kitchen table, moved about freely, and was not arrested until nearly three months later(see People v Normile, 229 AD2d 627, 627-628 [1996]). In addition, the questioning wasinvestigatory rather than accusatory (seePeople v Smielecki, 77 AD3d 1420, 1421 [2010], lv denied 15 NY3d 956[2010]), the entire conversation lasted only 90 minutes (see People v Nova, 198 AD2d193, 194 [1993], lv denied 83 NY2d 808 [1994]), and defendant was cooperative, neverasked for questioning to cease, and never requested counsel (see People v Mastin, 261AD2d 892, 893 [1999], lv denied 93 NY2d 1022 [1999]). Present—Whalen, P.J.,Smith, Carni, Curran and Scudder, JJ.