PEOPLE v. DAVIS (2008)

 Defendant appeals from a judgment convicting him after a jury trial of burglary in the first degree (Penal Law § 140.30[3] ).   We reject the contention of defendant that Supreme Court erred in refusing to suppress his statements to the police following an alleged de facto arrest without probable cause (cf. People v. Hunt, 155 A.D.2d 957, 958, 547 N.Y.S.2d 968, lv. denied 75 N.Y.2d 814, 552 N.Y.S.2d 564, 551 N.E.2d 1242).   Defendant and his sister willingly accompanied investigators to the police station, where defendant waived his Miranda rights.   Defendant was not handcuffed, did not ask to leave and was questioned for only one hour.   Although the questioning during that time may have been accusatory, that fact alone did not render the interrogation custodial in nature (see generally People v. Lunderman, 19 A.D.3d 1067, 1068-1069, 796 N.Y.S.2d 481, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743;  People v. Pulliam, 258 A.D.2d 681, 682-683, 685 N.Y.S.2d 327, lv. denied 93 N.Y.2d 977, 695 N.Y.S.2d 63, 716 N.E.2d 1108).   In any event, we conclude on the record before us that the police had probable cause to arrest defendant before he made his inculpatory statements (see generally CPL 140.10[1][b];  People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451).

 We reject defendant's further contention that the verdict is 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).  “The jury was entitled to resolve issues of credibility in favor of the People ․, and it cannot be said that the jury failed to give the evidence the weight it should be accorded” (People v. Walek, 28 A.D.3d 1246, 1246, 812 N.Y.S.2d 915, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261).   We agree with defendant that the court erred in precluding him from presenting evidence concerning his inability to read on the ground that such evidence constituted psychiatric evidence for which notice was required pursuant to CPL 250.10.   Defendant's inability to read is not a “ ‘condition bearing upon defendant's mental state’ ” (People v. Brown, 4 A.D.3d 886, 888, 772 N.Y.S.2d 143, lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198;  see generally People v. Little, 24 A.D.3d 1244, 1245, 809 N.Y.S.2d 312, lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 84, 847 N.E.2d 381).   Defendant demonstrated his ability to read during his testimony, however, and we conclude that the error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 Finally, we decline defendant's request that we disavow our prior decisions holding that there is no requirement that the police electronically record interrogations.   As we previously held, “[t]here is no Federal or State due process requirement that interrogations and confessions be electronically recorded” (People v. Falkenstein, 288 A.D.2d 922, 923, 732 N.Y.S.2d 817, lv. denied 97 N.Y.2d 704, 739 N.Y.S.2d 104, 765 N.E.2d 307;  see People v. Williams, 39 A.D.3d 1200, 835 N.Y.S.2d 793, lv. denied 9 N.Y.3d 853, 840 N.Y.S.2d 779, 872 N.E.2d 892;  People v. Kunz, 31 A.D.3d 1191, 817 N.Y.S.2d 824, lv. denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144).

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

MEMORANDUM: