PEOPLE v. DEBO (2007)

 On appeal from a judgment convicting her upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that County Court erred in refusing to suppress the statements that she made to the police during questioning at the police station.   We reject that contention.   At the crime scene, defendant informed the responding police officers that an unknown assailant entered her home, knocked her unconscious and shot her boyfriend.   Defendant thereafter was taken to the police station, where she made the oral and written statements in question.   Under the circumstances, we conclude that a reasonable person, innocent of any crime, would not have believed that he or she was in police custody but, rather, would have believed that he or she was being interviewed as a witness to a crime (see People v. Sherry, 41 A.D.3d 1235, 1236, 837 N.Y.S.2d 805;  see generally People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89).   In any event, even assuming, arguendo, that defendant was in police custody when she made the statements, we note that she was given Miranda warnings at the crime scene.  “[I]t is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous” (People v. Glinsman, 107 A.D.2d 710, 710, 484 N.Y.S.2d 64, lv. denied 64 N.Y.2d 889, 487 N.Y.S.2d 1036, 476 N.E.2d 1013, cert. denied 472 U.S. 1021, 105 S.Ct. 3487, 87 L.Ed.2d 621), and here the custody was continuous.

 The court properly denied defendant's motion for a mistrial on the ground that the People failed to preserve material evidence, i.e., a couch that, according to defendant, would provide exculpatory evidence.   The basis for defendant's motion was purely speculative (see People v. Schulze, 224 A.D.2d 729, 730, 638 N.Y.S.2d 176, lv. denied 88 N.Y.2d 853, 644 N.Y.S.2d 700, 667 N.E.2d 350;  People v. Porter, 179 A.D.2d 1018, 1018-1019, 580 N.Y.S.2d 117, lv. denied 79 N.Y.2d 1006, 584 N.Y.S.2d 460, 594 N.E.2d 954) and, in any event, defendant never sought the production of the couch “or expressed an interest in performing independent tests until its destruction was disclosed in the middle of trial.   On this record, the only conclusion to be drawn is that defendant forfeited whatever right [she] had to demand production of the [couch] and, consequently, [she] cannot now complain about the People's failure to preserve it” (People v. Allgood, 70 N.Y.2d 812, 813, 523 N.Y.S.2d 431, 517 N.E.2d 1316).   Defendant was not deprived of effective assistance of counsel based on defense counsel's failure to request production of the missing couch because, as noted, its value was purely speculative, and defense counsel used numerous photographs of the couch to advance defendant's theory of the case (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Contrary to defendant's further contentions, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: