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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Neil T. BARNES, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Esther Cohen Lee, Utica, for Defendant-Appellant. Michael A. Coluzza, Utica, for Plaintiff-Respondent.

 On appeal from a judgment convicting him of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that County Court erred in denying his motion to suppress statements in which he confessed to the murder.   Defendant contends that statements made at the scene of the crime should have been suppressed because he was not given his Miranda warnings.   We disagree.   Defendant was outside the door of the apartment when police asked him investigatory questions in response to a report of gunfire.   Defendant, without prompting from the police, then opened the door and made incriminating statements about the murder.   A reasonable person innocent of any crime would not have believed that he or she was in custody at that time (see, People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, rearg. denied 26 N.Y.2d 883, 309 N.Y.S.2d 1032, 258 N.E.2d 223, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;  see also, People v. Centano, 76 N.Y.2d 837, 838, 560 N.Y.S.2d 121, 559 N.E.2d 1280).   We reject defendant's further contention that statements made at the police station were involuntary and should have been suppressed.   The process of obtaining those statements continued from approximately 5:00 A.M. to 1:30 P.M.   Defendant declined offers of food, was provided with coffee and cigarettes and given a break to use the bathroom and did not appear intoxicated to the police.   Viewing the totality of the circumstances, we conclude that the statements were voluntarily made (see, People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318).   Moreover, the record does not support the contention of defendant that the police intentionally delayed the interrogation, thereby delaying his arraignment and rendering the statements involuntary (see, People v. Peak, 214 A.D.2d 1012, 1013, 626 N.Y.S.2d 605, lv. denied 86 N.Y.2d 800, 632 N.Y.S.2d 513, 656 N.E.2d 612).

 The court did not abuse its discretion in denying defendant's request for a Frye hearing (see, Frye v. United States, (D.C.Cir.), 293 F. 1013) on the admissibility of evidence of blood spatter interpretation.   Such evidence has long been deemed reliable (see, e.g., People v. Murray, 147 A.D.2d 925, 537 N.Y.S.2d 399, lv. denied 73 N.Y.2d 1019, 541 N.Y.S.2d 773, 539 N.E.2d 601;  People v. Comfort, 113 A.D.2d 420, 428, 496 N.Y.S.2d 857, lv. denied 67 N.Y.2d 760, 500 N.Y.S.2d 1031, 491 N.E.2d 288).

 Contrary to defendant's contention, the court did not abuse its discretion in determining that the probative value of an autopsy photograph used by the witness to explain her conclusion that the fatal wound was a “contact wound” outweighed any prejudicial effect on the jury (see, People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278;  People v. Delancy, 254 A.D.2d 815, 678 N.Y.S.2d 180, lv. denied 92 N.Y.2d 1048, 685 N.Y.S.2d 426, 708 N.E.2d 183).   Furthermore, because defendant raised the defense of justification, contending that he believed the victim was a burglar, the court properly admitted in evidence the video tape of a convenience store that showed the victim with defendant shortly before the murder.   Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.


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