PEOPLE v. MACRI (1997)

Defendant appeals from a judgment convicting him of arson in the second degree (Penal Law § 150.15), criminal mischief in the second degree (Penal Law § 145.10) and reckless endangerment in the first degree (Penal Law § 120.25), arising out of a fire at a building containing 15 apartments.

 There is no merit to the contention of defendant that his statements should have been suppressed.   The record supports the determination of the suppression court that defendant was not in custody during the polygraph examination or the postexamination interview, during which he made admissions (see, People v. Dyla, 142 A.D.2d 423, 432-433, 536 N.Y.S.2d 799, lv. denied 74 N.Y.2d 808, 546 N.Y.S.2d 566, 545 N.E.2d 880;  see also, People v. Flint, 151 A.D.2d 964, 965, 542 N.Y.S.2d 63, lv. denied 74 N.Y.2d 739, 545 N.Y.S.2d 114, 543 N.E.2d 757).   In any event, the record supports the determination of the suppression court that defendant was given timely Miranda warnings before he took the polygraph examination and that he knowingly and voluntarily waived his rights before he agreed to take the examination and speak to the officers (see, People v. Szczerbacki, 236 A.D.2d 840, 653 N.Y.S.2d 883, lv. denied 90 N.Y.2d 864, 661 N.Y.S.2d 191, 683 N.E.2d 1065).

 We conclude that the evidence is legally sufficient to support defendant's conviction (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Because defendant's admission constitutes direct evidence of guilt (see, People v. Corey, 233 A.D.2d 773, 650 N.Y.S.2d 411, lv. denied 89 N.Y.2d 984, 656 N.Y.S.2d 743, 678 N.E.2d 1359;  see also, People v. Rosner, 67 N.Y.2d 290, 295, 502 N.Y.S.2d 678, 493 N.E.2d 902), County Court properly denied defendant's request for a moral certainty instruction, which is required in cases where the evidence is exclusively circumstantial (see, People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014;  People v. Smeraldo, 242 A.D.2d 886, 662 N.Y.S.2d 883;  People v. Robbins, 229 A.D.2d 1008, 645 N.Y.S.2d 671).

Defendant was not deprived of a fair trial by cumulative trial errors.   We have considered the remaining contentions set forth in defendant's pro se supplemental brief and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: