PEOPLE v. JOHNSON

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Richard L. JOHNSON, Sr., Defendant-Appellant.

Decided: July 01, 2005

PRESENT:  GREEN, J.P., MARTOCHE, PINE, LAWTON, AND HAYES, JJ. Frank J. Nebush, Jr., Public Defender, Utica (Esther Cohen Lee of Counsel), for Defendant-Appellant. Michael A. Arcuri, District Attorney, Utica (Timothy P. Fitzgerald of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him of arson in the third degree (Penal Law § 150.10[1] ), defendant contends that County Court erred in denying his motion to suppress oral statements that he made to one police officer in the interim between two written statements given to another officer.   We reject that contention.   Even assuming, arguendo, that defendant was in police custody when he made the oral statements and was therefore entitled to Miranda warnings, we conclude that where, as here, “a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody was continuous” (People v. Glinsman, 107 A.D.2d 710, 710, 484 N.Y.S.2d 64, lv. denied 64 N.Y.2d 889, 487 N.Y.S.2d 1036, 476 N.E.2d 1013,cert. denied 472 U.S. 1021, 105 S.Ct. 3487, 87 L.Ed.2d 621;  see People v. Plume, 306 A.D.2d 916, 917, 762 N.Y.S.2d 313, lv. denied 100 N.Y.2d 644, 769 N.Y.S.2d 210, 801 N.E.2d 431;  People v. Jandreau, 277 A.D.2d 998, 716 N.Y.S.2d 514, lv. denied 96 N.Y.2d 784, 725 N.Y.S.2d 649, 749 N.E.2d 218).   Contrary to defendant's further contention, there were no “special circumstances ․ [that overcame defendant's] ‘will to resist,’ ” and thus defendant's statements were not thereby rendered involuntary (Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 48 L.Ed.2d 1, quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760).

Defendant failed to preserve for our review his further 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).   In any event, the evidence is legally sufficient to support the conviction and, also contrary to defendant's contention, the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: