PEOPLE v. MARTIN (2009)

Appeal by the defendant from a judgment of the County Court, Nassau County (Berkowitz, J.), rendered February 22, 2007, convicting him of manslaughter in the first degree, burglary in the second degree (two counts), tampering with physical evidence (two counts), and petit larceny, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Kase, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence was legally insufficient to support his conviction of manslaughter in the first degree, including disproving his defense of justification, is unpreserved for appellate review (see CPL 470.05;  People v. Hawkins, 11 N.Y.3d 484, 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Gray, 86 N.Y.2d 10, 20-21, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Clinton, 268 A.D.2d 531, 701 N.Y.S.2d 647;  People v. Vella, 247 A.D.2d 642, 642-643, 669 N.Y.S.2d 236), and we decline to review it in the exercise of our interest of justice jurisdiction.   In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt of manslaughter in the first degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that the evidence was legally insufficient to support his conviction on one of the counts of burglary in the second degree is also unpreserved for appellate review (see CPL 470.05;  People v. Hawkins, 11 N.Y.3d at 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Gray, 86 N.Y.2d at 20-21, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Harrison, 2 A.D.3d 1454, 1455, 769 N.Y.S.2d 436), and we decline to review it in the exercise of our interest of justice jurisdiction.   Upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on that count was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d at 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Burnett, 205 A.D.2d 792, 614 N.Y.S.2d 34).

 Contrary to the defendant's contention, his statements to law enforcement officials were properly admitted into evidence.   There is sufficient evidence to support the hearing court's conclusion that the defendant was not in police custody when he voluntarily accompanied police personnel to the police station (see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;  People v. Jordan, 21 A.D.3d 385, 800 N.Y.S.2d 33;  People v. Leggio, 305 A.D.2d 518, 761 N.Y.S.2d 74;  People v. Centano, 153 A.D.2d 494, 495, 545 N.Y.S.2d 131, affd. 76 N.Y.2d 837, 838, 560 N.Y.S.2d 121, 559 N.E.2d 1280;  People v. Bailey, 140 A.D.2d 356, 527 N.Y.S.2d 845).   Additionally, after the defendant was advised of, and waived, his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), additional warnings were not necessary, as he remained in continuous custody (see People v. Petronio, 34 A.D.3d 602, 604, 825 N.Y.S.2d 99;  People v. Glinsman, 107 A.D.2d 710, 484 N.Y.S.2d 64, cert. denied 472 U.S. 1021, 105 S.Ct. 3487, 87 L.Ed.2d 621).   Furthermore, based on the totality of the circumstances (see People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318), including the duration and conditions of the defendant's detention, the conduct and demeanor of the police toward the defendant, and the age, physical state, and mental state of the defendant (see People v. Baker, 208 A.D.2d 758, 617 N.Y.S.2d 798;  People v. McAvoy, 142 A.D.2d 605, 530 N.Y.S.2d 259;  People v. Ross, 134 A.D.2d 298, 299-300, 520 N.Y.S.2d 625), the defendant's post-Miranda statements were voluntarily given.   The County Court found that the defendant did not invoke his right to counsel before making statements to the police, and there is no basis to disturb that credibility determination (see People v. Tissiera, 22 A.D.3d 611, 611-612, 801 N.Y.S.2d 747).

The defendant's remaining contention is unpreserved for appellate review, and we decline to review it in the exercise of our interest of justice jurisdiction (see People v. Morey, 224 A.D.2d 730, 731, 637 N.Y.S.2d 500).