Opinion
2011-09-30
The PEOPLE of the State of New York, Respondent,v.Timothy ZUKE, Defendant–Appellant.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered June 16, 2009. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the second degree.
John E. Tyo, Shortsville, for defendant-appellant.R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for respondent.MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the second degree (Penal Law § 125.15[1] ), defendant contends that County Court erred in refusing to suppress his second statement to the police, which was given eight months after defendant had given a written statement to the police following an initial interview by them. That contention, however, is not properly before us. “[A]lthough the court issued a bench decision with respect to [those parts of defendant's omnibus motion seeking to suppress his statements to the police,] the exception set forth in CPL 710.70(2) allowing appellate review with respect to orders that finally den[y] a motion to suppress evidence is not applicable because defendant pleaded guilty before the court issued such an order” ( People v. Ellis, 73 A.D.3d 1433, 1433–1434, 903 N.Y.S.2d 615, lv. denied 15 N.Y.3d 851, 909 N.Y.S.2d 28, 935 N.E.2d 820 [internal quotation marks omitted]; see People v. McGinnis, 83 A.D.3d 1594, 921 N.Y.S.2d 439). In addition, defendant's contention that the court should have suppressed the statement on the ground that the People presented insufficient evidence at the suppression hearing is raised for the first time on appeal and is therefore unpreserved for our review ( see People v. Poole, 55 A.D.3d 1354, 1355, 864 N.Y.S.2d 359, lv. denied 11 N.Y.3d 929, 874 N.Y.S.2d 14, 902 N.E.2d 448; People v. Brooks, 26 A.D.3d 739, 740, 808 N.Y.S.2d 517, lv. denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975, 7 N.Y.3d 810, 822 N.Y.S.2d 485, 855 N.E.2d 801). In any event, we conclude that suppression was not warranted on the ground raised by defendant before the suppression court inasmuch as the record establishes that defendant was not in custody when he gave his second statement to the police and thus Miranda warnings were not required at that time ( see People v. Stokes, 212 A.D.2d 986, 623 N.Y.S.2d 55, lv. denied 86 N.Y.2d 741, 631 N.Y.S.2d 622, 655 N.E.2d 719; People v. Schultz, 176 A.D.2d 1239, 576 N.Y.S.2d 735, lv. denied 79 N.Y.2d 832, 580 N.Y.S.2d 212, 588 N.E.2d 110; see generally People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239; People v. Yukl, 25 N.Y.2d 585, 588–589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
SCUDDER, P.J., SMITH, CARNI, LINDLEY, and MARTOCHE, JJ., concur.