PEOPLE v. RODRIGUEZ

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

The PEOPLE of the State of New York, Respondent, v. Steve RODRIGUEZ, Defendant-Appellant.

Decided: October 29, 1998

Before LERNER, P.J., and MILONAS, ELLERIN, RUBIN and WILLIAMS, JJ. Marc Frazier Scholl, for Respondent. Elon Harpaz, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Frederic Berman, J.), rendered March 8, 1995, convicting defendant, after a jury trial, of murder in the second degree and two counts of robbery in the first degree, and sentencing him to concurrent terms of 15 years to life and 81/313 to 25 years, and a consecutive term of 81/313 to 25 years, unanimously affirmed.

 The court properly denied defendant's motion to suppress statements.   His current claims are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find that since there was no restriction on defendant's freedom over and above his ordinary prison confinement on an unrelated matter when he was asked if he knew the codefendant and answered affirmatively, Miranda warnings were not required (People v. Alls, 83 N.Y.2d 94, 608 N.Y.S.2d 139, 629 N.E.2d 1018, cert. denied 511 U.S. 1090, 114 S.Ct. 1850, 128 L.Ed.2d 474;  United States v. Menzer, 29 F.3d 1223, 1230-1233, cert. denied 513 U.S. 1002, 115 S.Ct. 515, 130 L.Ed.2d 422;  People v. Vila, 208 A.D.2d 781, 617 N.Y.S.2d 495, lv. denied 85 N.Y.2d 867, 624 N.Y.S.2d 386, 648 N.E.2d 806).   In any event, the evidence also showed that immediately prior to administration of the Miranda warnings, defendant was merely handed a written statement inculpating him in the crimes and was specifically asked not to comment thereon.   In these circumstances, there was no basis upon which to suppress defendant's statements made following prompt administration of the Miranda warnings (see, People v. Tarleton, 184 A.D.2d 463, 585 N.Y.S.2d 409, lv. denied 80 N.Y.2d 910, 588 N.Y.S.2d 836, 602 N.E.2d 244).

 Imposition of consecutive sentences on one of the two robbery convictions and the felony murder conviction was appropriate since the court properly determined that the trial record showed the acts committed in connection with each robbery were separate and distinct (People v. Laureano, 87 N.Y.2d 640, 644, 642 N.Y.S.2d 150, 664 N.E.2d 1212).

MEMORANDUM DECISION.