Opinion
No. 7 KA 05-00847.
September 28, 2007.
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered March 24, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, unauthorized use of a vehicle in the first degree and petit larceny.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR RESPONDENT.
Before: Present — Scudder, P.J., Hurlbutt, Gorski, Centra and Lunn, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25), unauthorized use of a vehicle in the first degree (§ 165.08) and petit larceny (§ 155.25). Contrary to the contention of defendant, Supreme Court did not err in refusing to suppress his statements to the police. The conflicting testimony of defendant and the police detectives presented credibility issues that the court was entitled to resolve in favor of the People ( see People v Twillie, 28 AD3d 1236, lv denied 7 NY3d 795; People v Jones, 9 AD3d 837, 838-839, lv denied 3 NY3d 708, 4 NY3d 745 [2004]; see generally People v Prochilo, 41 NY2d 759, 761). We conclude that the police properly advised defendant of his Miranda rights before questioning him concerning a murder in Brooklyn, that defendant voluntarily and intelligently waived those rights, and that, because defendant was in the continuous custody of the police, it was not necessary for the police to advise defendant again of his Miranda rights before questioning him concerning a second murder that occurred in Buffalo ( see People v Kemp, 266 AD2d 887, lv denied 94 NY2d 921). Defendant contends that his Miranda rights should have been repeated before the questioning concerning the Buffalo murder because he was initially taken into custody for questioning only on the Brooklyn murder. We reject that contention. "There is . . . no requirement that a suspect be made aware in advance of all possible subjects of questioning" before receiving and waiving Miranda rights ( People v Seaman, 130 AD2d 875, 877, lv denied 70 NY2d 717; see People v Hall, 152 AD2d 948, 949, lv denied 74 NY2d 847). Finally, the sentence is not unduly harsh or severe.