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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Dale R. EALY, Sr., Defendant-Appellant.

Decided: July 01, 2005

PRESENT:  PIGOTT, JR., P.J., KEHOE, SMITH, LAWTON, AND HAYES, JJ. Michael J. Violante, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant-Appellant. Dale R. Ealy, Sr., Defendant-Appellant Pro Se. Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of three counts of sexual abuse in the first degree (Penal Law § 130.65[3] ), two counts of public lewdness (§ 245.00[b] ), and one count of endangering the welfare of a child (§ 260.10[1] ).   Contrary to the contention of defendant, County Court did not abuse its discretion in refusing to redact that portion of his statement wherein he stated that the victim was “very honest” (see generally People v. Davis, 43 N.Y.2d 17, 27, 400 N.Y.S.2d 735, 371 N.E.2d 456, cert. denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88, rearg. dismissed 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232).   Defendant further contends that the court should have suppressed the statement that he made to the police because he had not received his Miranda warnings before making that statement.   According to defendant, he was in custody when he made the statement because the police officer to whom he made the statement had previously decided to arrest him.   Contrary to defendant's contention, “[t]he subjective belief of a police officer is not controlling in determining when an arrest occurs” (People v. Fenti, 175 A.D.2d 598, 600, 572 N.Y.S.2d 979).   We conclude that a reasonable person, innocent of any crime, would not have believed that he or she was in custody when defendant made the statement, and thus Miranda warnings were not required (see generally 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;  People v. Scott, 288 A.D.2d 846, 847, 732 N.Y.S.2d 502, lv. denied 97 N.Y.2d 761, 742 N.Y.S.2d 622, 769 N.E.2d 368).   Contrary to defendant's further 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, defendant received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and 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.


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