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

The PEOPLE, etc., respondent, v. Vinicio VALVERDE, appellant.

Decided: December 27, 2004

FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, and THOMAS A. ADAMS, JJ. Del Atwell, Montauk, N.Y., for appellant. Michael E. Bongiorno, District Attorney, New City, N.Y. (Tina L. Guccione of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered July 20, 1999, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress statements made to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant, who is Spanish-speaking, did not preserve for appellate review his claims that he did not voluntarily waive his right to counsel and that the police officer who administered his rights in Spanish was not a reliable interpreter, as he did not raise these issues at the suppression hearing or trial (see CPL 470.05[2];  People v. Dancey, 57 N.Y.2d 1033, 457 N.Y.S.2d 782, 444 N.E.2d 32;  People v. Elkady, 287 A.D.2d 518, 731 N.Y.S.2d 472).   In any event, the defendant's claims are without merit.   The defendant was advised of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) in Spanish by a Spanish-speaking police officer.   The defendant, on a Miranda form written in Spanish and English, first checked the line indicating “yes” in Spanish to the question asking “Do you want a lawyer?.”  However, when asked by the Spanish-speaking police officer if he was requesting a lawyer, the defendant said “no,” and checked the line indicating “no,” and crossed out and initialed his first response to that question.   The defendant also signed a statement on the same form indicating that he understood all the rights set forth in that form.   Moreover, the defendant indicated verbally to the Spanish-speaking police officer that he understood his rights but wished to waive them (see People v. Rivas, 182 A.D.2d 722, 582 N.Y.S.2d 727).   Contrary to the defendant's contention, there was enough evidence on which the hearing court could conclude that he made statements to law enforcement officials after he knowingly and voluntarily waived his Miranda rights (see Miranda v. Arizona, supra;  People v. Sirno, 76 N.Y.2d 967, 563 N.Y.S.2d 730, 565 N.E.2d 479;  People v. Williams, 62 N.Y.2d 285, 476 N.Y.S.2d 788, 465 N.E.2d 327;  People v. Rivas, supra).   Further, the record confirms that the police officer who read him his rights was fluent in Spanish and did not encounter any difficulties in communicating with the defendant.

The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review since he did not specify this ground in his motion to dismiss at trial (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

The defendant's remaining contentions are without merit.

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