PEOPLE v. HASTY

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

The PEOPLE, etc., respondent, v. Miles HASTY, appellant.

Decided: January 26, 2006

HOWARD MILLER, J.P., BARRY A. COZIER, REINALDO E. RIVERA, and PETER B. SKELOS, JJ. Lynn W.L. Fahey, New York, N.Y. (M. Chris Fabricant of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Jamie E. Lindenbaum of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered September 15, 2003, convicting him of manslaughter in the second degree, after a nonjury trial, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Hanophy, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, his written and videotaped statements were properly admitted into evidence.  “It is well settled that where 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 has remained continuous” (People v. Glinsman, 107 A.D.2d 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. Pierre, 300 A.D.2d 324, 751 N.Y.S.2d 500;  People v. Baker, 208 A.D.2d 758, 617 N.Y.S.2d 798).   Here, unlike the cases cited, the defendant was not in police custody when the Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) were first administered, nor was he the target of the police investigation when he first waived his Miranda rights.   Nevertheless, this is a distinction without a difference (see People v. Valentin, 264 A.D.2d 788, 696 N.Y.S.2d 57;  People v. Hatzfeld, 240 A.D.2d 758, 660 N.Y.S.2d 29;  People v. Williams, 115 A.D.2d 627, 496 N.Y.S.2d 285;  People v. Oates, 104 A.D.2d 907, 480 N.Y.S.2d 518).   The defendant continuously remained at the precinct from the time he voluntarily accompanied the police from his home to the precinct until the time he made his first incriminating statement.

 The totality of the circumstances do not compel us to find that renewed warnings were necessary (see Wyrick v. Fields, 459 U.S. 42, 48, 103 S.Ct. 394, 74 L.Ed.2d 214;  cf. People v. Zappulla, 282 A.D.2d 696, 697-698, 724 N.Y.S.2d 433).   The defendant was not deprived of food, sleep, bathroom privileges, or the like.   By all accounts, the defendant remained at the precinct to follow the investigation on his own volition.   The defendant was not subject to intimidation or coercion before making his incriminating statements.   Police Lieutenant Christopher White's statements to the defendant regarding the results of the investigation were not so fundamentally unfair as to deny the defendant due process of law by inducing a false confession (see People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188;   People v. Joseph, 309 A.D.2d 946, 947, 766 N.Y.S.2d 366;  People v. Foster, 193 A.D.2d 692, 598 N.Y.S.2d 36).

 The defendant's contention that his sentencing as a discretionary persistent felony offender (see Penal Law § 70.10[2] ) violated his constitutional right to a jury trial pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is without merit (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;  People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160).

The defendant's remaining contentions are without merit.

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