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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Martin L. OAKES, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ. D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant-Appellant. John C. Tunney, District Attorney, Bath (Travis J. Barry of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20 [1] ).   County Court properly refused to suppress defendant's statements to the police.   The record of the suppression hearing establishes that defendant was not in custody when he made his initial statement to the police at the home of his girlfriend, and thus Miranda warnings were not required (see generally People v. Brown, 52 A.D.3d 1175, 1176, 859 N.Y.S.2d 839).  “Because the initial statement was not the product of pre-Miranda custodial interrogation, the post-Miranda detailed confession given by defendant cannot be considered the fruit of the poisonous tree” (People v. Flecha, 195 A.D.2d 1052, 1053, 600 N.Y.S.2d 400).   The record of the suppression hearing further establishes that, although defendant was intoxicated at the time he made the statements, he “was not intoxicated to such a degree that he was incapable of voluntarily, knowingly, and intelligently waiving his Miranda rights” (People v. Downey, 254 A.D.2d 794, 795, 679 N.Y.S.2d 762, lv. denied 92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451).

 We reject the contention of defendant that he was denied his right to be present at a material stage of the trial when the court conducted an in camera interview of a sworn juror, in the presence of the prosecutor and defense counsel but in the absence of defendant, to determine whether that sworn juror was grossly unqualified to serve.  “Whether a seated juror is grossly unqualified to serve is a legal determination ․, and as such the presence of counsel at a hearing to determine a juror's qualification is adequate” (People v. Harris, 99 N.Y.2d 202, 212, 753 N.Y.S.2d 437, 783 N.E.2d 502;  see also People v. Mullen, 44 N.Y.2d 1, 5-6, 403 N.Y.S.2d 470, 374 N.E.2d 369;  People v. Zeigler, 305 A.D.2d 1100, 759 N.Y.S.2d 722, lv. denied 100 N.Y.2d 626, 767 N.Y.S.2d 410, 799 N.E.2d 633).   Defendant failed to preserve for our review his further contentions that the court erred in failing to discharge that juror (see People v. Kelly, 5 N.Y.3d 116, 120 n. 2, 799 N.Y.S.2d 763, 832 N.E.2d 1179), that the court's Sandoval ruling constituted an abuse of discretion (see People v. Gonzalez, 52 A.D.3d 1228, 1229, 859 N.Y.S.2d 822, lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 615, 896 N.E.2d 101), and that the verdict is repugnant (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant also failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Contrary to the further contention of defendant, we conclude that he received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Finally, the sentence is not unduly harsh or severe.

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