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

The PEOPLE of the State of New York, Respondent, v. Luis FLECHA, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  MARTOCHE, J.P., SMITH, PERADOTTO, GREEN, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (William Clauss of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him following a bench trial of one count each of assault in the first degree (Penal Law § 120.10[1] ) and endangering the welfare of a child (§ 260.10[1] ), and three counts of assault in the second degree (§ 120.05[4], [8], [9] ).   County Court properly refused to suppress defendant's statements to the police.   The record of the suppression hearing establishes that defendant voluntarily accompanied two officers to the Public Safety Building, that he was never handcuffed or otherwise restrained, and that the initial interview was not accusatory.  “Under these circumstances, a reasonable person innocent of any crime would not have believed that he or she was in custody, and thus [Miranda ] warnings were not required” (People v. Dozier, 32 A.D.3d 1346, 1346, 821 N.Y.S.2d 726, lv. dismissed 8 N.Y.3d 880, 832 N.Y.S.2d 492, 864 N.E.2d 622;  see People v. Tankleff, 199 A.D.2d 550, 552, 606 N.Y.S.2d 707, affd. 84 N.Y.2d 992, 622 N.Y.S.2d 503, 646 N.E.2d 805;  People v. Vandunk, 2 A.D.3d 1058, 770 N.Y.S.2d 136, lv. denied 3 N.Y.3d 742, 786 N.Y.S.2d 822, 820 N.E.2d 301).  “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 evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction of assault in the first degree.   The intent of defendant to cause serious injury “may be inferred from his conduct, the surrounding circumstances, and the medical evidence” (People v. White, 216 A.D.2d 872, 873, 629 N.Y.S.2d 362, lv. denied 86 N.Y.2d 805, 632 N.Y.S.2d 518, 656 N.E.2d 617;  see People v. Watson, 269 A.D.2d 755, 756, 704 N.Y.S.2d 396, lv. denied 95 N.Y.2d 806, 711 N.Y.S.2d 174, 733 N.E.2d 246).   Defendant failed to preserve for our review his contention that the verdict is inconsistent insofar as the court in this bench trial found him guilty of both intentionally and recklessly causing serious physical injury by means of the same dangerous instrument (see CPL 470.05[2];  see generally People v. Carter, 7 N.Y.3d 875, 876, 826 N.Y.S.2d 588, 860 N.E.2d 50;  People v. Garner, 174 A.D.2d 1028, 1029, 572 N.Y.S.2d 192, lv. denied 78 N.Y.2d 966, 574 N.Y.S.2d 945, 580 N.E.2d 417), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

 We note, however, that assault in the second degree under the second count of the indictment (Penal Law § 120.05[4] ) is a lesser included offense of assault in the first degree under Penal Law § 120.10(1) (see People v. Green, 56 N.Y.2d 427, 435, 452 N.Y.S.2d 389, 437 N.E.2d 1146, rearg. denied 57 N.Y.2d 775, 454 N.Y.S.2d 1033, 440 N.E.2d 1343), and therefore should have been considered only in the alternative as an inclusory concurrent count of assault in the first degree (see CPL 300.30[4];  300.40 [3][b];  People v. Fort, 292 A.D.2d 821, 739 N.Y.S.2d 319, lv. denied 98 N.Y.2d 710, 749 N.Y.S.2d 7, 778 N.E.2d 558).   We therefore modify the judgment accordingly.   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convicting defendant of assault in the second degree under count two of the indictment and dismissing that count of the indictment and as modified the judgment is affirmed.