PEOPLE v. SOROKA

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Aleksandr A. SOROKA, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, GREEN, AND HAYES, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Michael J. Nolan of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of grand larceny in the fourth degree (Penal Law § 155.30[5] ).   Supreme Court properly determined that Miranda warnings were not required before defendant made his statement to the police in the living room of his home, and the court therefore properly refused to suppress that statement (see People v. Greene, 292 A.D.2d 832, 739 N.Y.S.2d 310, lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 465, 774 N.E.2d 230;  People v. Stone, 283 A.D.2d 980, 724 N.Y.S.2d 387, lv. denied 96 N.Y.2d 925, 732 N.Y.S.2d 642, 758 N.E.2d 668).   The record establishes that defendant's statement was elicited during a noncustodial interview and that the police left defendant's home without arresting defendant even after he had provided them with a written confession (see People v. Butcher, 11 A.D.3d 956, 782 N.Y.S.2d 339, lv. denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976;  People v. Adelman, 1 A.D.3d 1029, 767 N.Y.S.2d 368;  People v. Ovitt, 283 A.D.2d 832, 834, 726 N.Y.S.2d 156, lv. denied 96 N.Y.2d 905, 730 N.Y.S.2d 803, 756 N.E.2d 91).   Under the circumstances, we conclude that a reasonable person innocent of any wrongdoing would not have believed that he was in custody (see generally Matter of Kwok T., 43 N.Y.2d 213, 219-220, 401 N.Y.S.2d 52, 371 N.E.2d 814;  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 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).

We further conclude that the court did not abuse its discretion in denying the request of defendant for an interpreter to aid him at trial (see People v. Hernandez, 295 A.D.2d 989, 990, 743 N.Y.S.2d 355, lv. denied 98 N.Y.2d 711, 749 N.Y.S.2d 8, 778 N.E.2d 559).   Contrary to defendant's further contention, the definite sentence of one year of incarceration is not unduly harsh or severe, and we decline to reduce the sentence to 364 days to enable defendant to avoid deportation (see generally People v. Vasquez, 168 A.D.2d 524, 525, 562 N.Y.S.2d 762, lv. denied 77 N.Y.2d 911, 569 N.Y.S.2d 944, 572 N.E.2d 627;  People v. Padilla, 166 A.D.2d 291, 564 N.Y.S.2d 307, lv. denied 77 N.Y.2d 842, 567 N.Y.S.2d 210, 568 N.E.2d 659).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: