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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Diana LaBRECK, Defendant-Appellant.

Decided: September 28, 2001

PRESENT:  PINE, J. P., HAYES, HURLBUTT, BURNS and GORSKI, JJ. Frederick P. Lester, for defendant-appellant. Kristyna S. Mills, for plaintiff-respondent.

County Court properly denied defendant's motion to suppress oral statements given on December 16, 1997 and oral and written statements given on December 17, 1997.   Although defendant was in handcuffs for a period of time on December 16, 1997, the record supports the court's finding that defendant was not in custody (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. Allen, 73 N.Y.2d 378, 379-380, 540 N.Y.S.2d 971, 538 N.E.2d 323).   Defendant was restrained because she was belligerent and interfering with ambulance personnel who were trying to attend to the victim, “not because the police had decided that [s]he was the perpetrator” (People v. Cole, 233 A.D.2d 247, 248, 650 N.Y.S.2d 127, lv. denied 89 N.Y.2d 984, 656 N.Y.S.2d 743, 678 N.E.2d 1359).   The record also supports the court's finding that defendant was not in custody on December 17, 1997 prior to receiving her Miranda warnings.   Defendant was told that she was free to leave upon her release from jail on an unrelated charge.   We reject the further contention of defendant that her statements were involuntary.   Based upon the totality of the circumstances, we conclude that the statements were voluntarily given (see, People v. Jones, 273 A.D.2d 889, 708 N.Y.S.2d 544, lv. denied 95 N.Y.2d 854, 714 N.Y.S.2d 5, 736 N.E.2d 866).   Defendant failed to preserve for our review her challenge to the legal sufficiency of the evidence with respect to the conviction of depraved indifference murder (Penal Law § 125.25[2];  see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence 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), we conclude that it is legally sufficient to establish beyond a reasonable doubt that defendant committed that crime (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant also failed to preserve for our review her contention that the court abused its discretion in allowing the jury to take notes when the court reinstructed the jury with respect to depraved indifference murder (see, CPL 470.05[2] ), 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] ).

Judgment unanimously affirmed.