PEOPLE v. MILLAN (1999)

Judgment, Supreme Court, New York County (James Yates, J.), rendered February 8, 1996, convicting defendant, after a jury trial, of two counts of murder in the second degree and one count each of robbery in the first degree and burglary in the second degree, and sentencing him to concurrent terms of 25 years to life on each murder conviction and 121/212 to 25 years on the robbery and burglary convictions, unanimously modified, on the law, to reduce the concurrent sentence imposed in connection with the burglary conviction to 71/212 to 15 years, and otherwise affirmed.

Defendant's motion to suppress statements was properly denied.   According due deference to the credibility determinations of the court, the police action in comparing defendant's appearance with a facsimile photograph in their possession constituted appropriate clarifying action, rather than the functional equivalent of interrogation (see, People v. Huffman, 41 N.Y.2d 29, 390 N.Y.S.2d 843, 359 N.E.2d 353;  see also, People v. Rivers, 56 N.Y.2d 476, 453 N.Y.S.2d 156, 438 N.E.2d 862).   Thus, Miranda warnings were not required.   We have considered and rejected defendant's remaining arguments on the suppression issue.

We find no abuse of sentencing discretion.   However, as conceded by the People, the maximum sentence permissible in connection with the burglary conviction is 71/212 to 15 years (Penal Law § 70.02[3][b] ).  Thus, the sentence is modified accordingly.

MEMORANDUM DECISION.