PEOPLE v. KEMP (1999)

 Defendant was convicted following a jury trial of attempted rape in the first degree (Penal Law §§ 110.00, 130.35[3] ) and sexual abuse in the first degree (Penal Law § 130.65[3] ).  Defendant contends that the Miranda warnings should have been repeated after a four-hour break in the interrogation.   Defendant failed to raise that contention at the suppression hearing and thus has failed to preserve it for our review (see, CPL 470.05 [2];  People v. DiLenola, 245 A.D.2d 1132, 667 N.Y.S.2d 535;  People v. Mota, 243 A.D.2d 316, 664 N.Y.S.2d 529, lv. denied 91 N.Y.2d 835, 667 N.Y.S.2d 689, 690 N.E.2d 498).   In any event, defendant's contention is without merit.  “ ‘It is well settled that where a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it 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. Stanton, 162 A.D.2d 987, 557 N.Y.S.2d 782, lv. denied 76 N.Y.2d 991, 563 N.Y.S.2d 780, 565 N.E.2d 529, quoting People v. Glinsman, 107 A.D.2d 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;  see, People v. Thomas, 233 A.D.2d 347, 649 N.Y.S.2d 817, lv. denied 89 N.Y.2d 1102, 660 N.Y.S.2d 396, 682 N.E.2d 997;  People v. Baker, 208 A.D.2d 758, 617 N.Y.S.2d 798, lv. denied 85 N.Y.2d 905, 627 N.Y.S.2d 328, 650 N.E.2d 1330).

 The contention of defendant that his statements to police were involuntary or improperly obtained because he was in the throes of a diabetic reaction and was taking medication for a psychiatric condition is also unpreserved for our review (see, CPL 470.05[2];  People v. DiLenola, supra;  People v. Mota, supra;  People v. Sutton, 111 A.D.2d 197, 489 N.Y.S.2d 15, lv. denied 66 N.Y.2d 768, 497 N.Y.S.2d 1042, 488 N.E.2d 128) and in any event is lacking in merit.  “[B]ased on the totality of the circumstances [citations omitted], including the duration and conditions of detention, the attitude of the police toward the defendant, and the age, physical state and mental state of the defendant” (People v. Baker, supra, at 758-759, 617 N.Y.S.2d 798;  see also, People v. Sakadinsky, 239 A.D.2d 443, 657 N.Y.S.2d 754, lv. denied 90 N.Y.2d 897, 662 N.Y.S.2d 440, 685 N.E.2d 221), we conclude that the People proved beyond a reasonable doubt that defendant's statements were voluntary.

Judgment unanimously affirmed.

MEMORANDUM: