Opinion
15840, 5744/11.
10-13-2015
The PEOPLE of the State of New York, Respondent, v. Carlo RASTALDO, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, ANDRIAS, MANZANET–DANIELS, JJ.
Opinion Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered September 20, 2012, convicting defendant, after a nonjury trial, of burglary in the second and third degrees and two counts of petit larceny, and sentencing him to an aggregate term of 3 ½ years, unanimously modified, on the law, to the extent of vacating the third-degree burglary conviction and dismissing that count of the indictment, and otherwise affirmed.
The court properly denied defendant's motion to suppress statements made to the police prior to the administration of Miranda warnings. The record supports the court's finding that these statements were spontaneous, volunteered utterances that were not the product of police interrogation or its functional equivalent (see People v. Ealey, 272 A.D.2d 269, 710 N.Y.S.2d 321 [1st Dept.2000], lv. denied 95 N.Y.2d 865, 715 N.Y.S.2d 219, 738 N.E.2d 367 [2000] ). In any event, the record also establishes that defendant's post–Miranda statements were attenuated from the statements at issue.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence established the “dwelling” element of second-degree burglary (Penal Law § 140.25[2] ; see People v. Joseph, 124 A.D.3d 437, 1 N.Y.S.3d 63 [1st Dept.2015], lv. granted 2015 N.Y. Slip Op. 70750[U], 2015 WL 1786251 [2015] ).
As the People concede, the third-degree burglary count should be dismissed as a lesser included offense of second-degree burglary conviction.