PEOPLE v. OGLESBY (2005)

 On appeal from a judgment convicting him upon a jury verdict of manslaughter in the second degree (Penal Law § 125.15[1] ), defendant contends that the evidence is legally insufficient to support the conviction.   Defendant failed to preserve that contention for our review (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Page-Johnson, 5 A.D.3d 990, 773 N.Y.S.2d 310) and, in any event, we conclude that it is lacking in merit (see People v. DeNormand, 1 A.D.3d 1047, 1048, 767 N.Y.S.2d 380, lv. denied 1 N.Y.3d 626, 777 N.Y.S.2d 25, 808 N.E.2d 1284).   We further conclude that 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).   Contrary to the further contention of defendant, Supreme Court properly denied his motion to suppress his statements to the police.   The police had reasonable suspicion to conduct an investigatory detention of defendant at the scene of the incident, and the statements made by defendant before he received his Miranda warnings were admissible inasmuch as they were spontaneous and were not the product of express questioning or its functional equivalent (see Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297;  People v. Rivers, 56 N.Y.2d 476, 479-480, 453 N.Y.S.2d 156, 438 N.E.2d 862, rearg. denied 57 N.Y.2d 775, 454 N.Y.S.2d 1033, 440 N.E.2d 1343;   People v. Downey, 254 A.D.2d 794, 679 N.Y.S.2d 762, lv. denied 92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451).   After validly waiving his Miranda rights, defendant voluntarily made further statements to the police, and the court therefore properly refused to suppress those statements (see People v. Spearman, 226 A.D.2d 180, 181, 640 N.Y.S.2d 532, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 460, 668 N.E.2d 431).   The contention of defendant that he was denied a fair trial by prosecutorial misconduct is without merit (see generally People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Casillas, 289 A.D.2d 1063, 1064-1065, 736 N.Y.S.2d 207, lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358).   Finally, we conclude that, “[b]ecause ‘[t]here is no Federal or State due process requirement that interrogations and confessions be electronically recorded’ ․, defendant was not denied due process based on the failure of the police to record the interrogation resulting in [his] statement” (People v. Martin, 294 A.D.2d 850, 850, 741 N.Y.S.2d 763, lv. denied 98 N.Y.2d 711, 749 N.Y.S.2d 9, 778 N.E.2d 560).

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

MEMORANDUM: