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

PEOPLE of the State of New York, Plaintiff-Respondent, v. David REGAN, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND LAWTON, JJ. Rosenthal, Siegel, Muenkel & Maloney, LLP, Buffalo (Tiffany M. Szymanek of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of arson in the second degree (Penal Law § 150.15) and criminal mischief in the third degree (§ 145.05[2] ).   Defendant failed to move to dismiss based on the alleged insufficiency of the evidence and thus failed to preserve for our review his present contention that the conviction is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Evidence of defendant's intent to damage the building and that “circumstances [were] such as to render the presence of such a person [inside the building] a reasonable possibility” may be inferred from both direct and circumstantial evidence (§ 150.15;  see generally People v. Ozarowski, 38 N.Y.2d 481, 489, 381 N.Y.S.2d 438, 344 N.E.2d 370;  People v. Brown, 231 A.D.2d 956, 957, 648 N.Y.S.2d 198;  People v. Camarre, 171 A.D.2d 1070, 569 N.Y.S.2d 246).

Defendant failed to preserve for our review his contention that County Court erred in charging the jury concerning the manner in which it should evaluate defendant's prior felony conviction (see CPL 470.05[2] ).   In any event, we note that the court's charge essentially tracked the language of 1 CJI(NY) 7.21 and was proper (see generally People v. Jackson, 74 N.Y.2d 787, 790, 545 N.Y.S.2d 95, 543 N.E.2d 738).

 Contrary to the further contention of defendant, the court properly refused to suppress statements he made to the police.   In determining that defendant was not in custody when he made his oral statements to the officers, the court was entitled to credit the testimony of the police officers that defendant voluntarily accompanied them to the Buffalo Fire Investigation Office, was not handcuffed and did not request an attorney (see generally People v. Yukl, 25 N.Y.2d 585, 588-589, 307 N.Y.S.2d 857, 256 N.E.2d 172, rearg. denied 26 N.Y.2d 845, 309 N.Y.S.2d 593, 258 N.E.2d 90, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;  People v. Peterkin, 12 A.D.3d 1026, 1028, 785 N.Y.S.2d 620, lv. denied 4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142).   The inquiry of defendant whether he needed an attorney does not constitute a request for counsel (see People v. Mitchell, 2 N.Y.3d 272, 276, 778 N.Y.S.2d 427, 810 N.E.2d 879;  People v. D'Eredita, 302 A.D.2d 925, 755 N.Y.S.2d 673, lv. denied 99 N.Y.2d 654, 760 N.Y.S.2d 118, 790 N.E.2d 292).   Indeed, we note that defendant testified that he did not believe that he was under arrest and did not feel pressured by the officers' presence.   The record also supports the court's determination that defendant knowingly, voluntarily and intelligently waived his Miranda rights before providing his written statements to the police (see People v. Cunningham, 13 A.D.3d 1118, 1119, 786 N.Y.S.2d 677, lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677).   The court was entitled to resolve issues of credibility in favor of the People (see People v. Coleman, 306 A.D.2d 941, 760 N.Y.S.2d 797, lv. denied 1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Erie County Court for proceedings pursuant to CPL 460.50(5).