Opinion
KA 02-01272.
December 31, 2003.
Appeal from a judgment of Ontario County Court (Doran, J.), entered March 26, 2002, convicting defendant upon his plea of guilty of gang assault in the first degree.
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, WISNER, HURLBUTT, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: County Court properly denied defendant's suppression motion. Although defendant was not orally advised of his Miranda rights prior to questioning, he was given a written copy of those rights after he acknowledged that he could read and write, and he was observed reading them before signing a written waiver. Contrary to defendant's contention, "it is not essential that the [ Miranda] warnings * * * be given in oral rather than written form" ( United States v. Sledge, 546 F.2d 1120, 1122 [4th Cir], cert denied 430 U.S. 910; see 2 LaFave, Israel and King, Criminal Procedure § 6.8 [c], at 577 [2d ed]; Ringel, Searches and Seizures, Arrests and Confessions § 26.5; see also People v. Gaylord, 210 A.D.2d 980, lv denied 84 N.Y.2d 1031). In making our determination, we emphasize that defendant's sole contention is that Miranda warnings must be given orally. We remind the People, however, that "a heavy burden rests upon [them] to prove that a person in custody did knowingly and intelligently waive his privilege against self-incrimination and his right to retained or appointed counsel, * * * and, although each particular case must depend upon its own facts, * * * the preferred practice would include both an oral recitation of the required Miranda warnings coupled with the delivery of a written explanation thereof to the accused and the request that he execute a legally sufficient waiver prior to the commencement of custodial interrogation" ( Sledge, 546 F.2d at 1122). We have considered the remaining contentions of defendant relating to his guilty plea and conclude that they are without merit.