Opinion
December 8, 1997
Appeal from the Supreme Court, Kings County (Harkavy, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence imposed for criminal possession of marihuana in the fifth degree from one year to three months imprisonment; and as so modified, the judgment is affirmed.
The defendant contends that the People failed to prove a voluntary waiver of his Miranda rights because the police failed to ask him whether, having been apprised of his rights, he was still willing to answer questions. However, because the defendant failed to raise this specific contention at the hearing or in his motion papers, this issue is unpreserved for appellate review (see, People v. Tutt, 38 N.Y.2d 1011; People v. Alexander, 226 A.D.2d 548). In any event, an implicit waiver was established on this record (see, People v. Sirno, 76 N.Y.2d 967). The circumstances surrounding the defendant's admissions to police do not indicate that his admissions were coerced (cf., People v. Anderson, 42 N.Y.2d 35).
The maximum term of imprisonment upon a conviction of criminal possession of marihuana in the fifth degree is three months (Penal Law § 221.10, 70.15 Penal [2]). Therefore, the determinate term of one year imprisonment imposed upon that conviction is reduced to three months. The sentence was not otherwise excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit or do not warrant reversal.
Bracken, J. P., Sullivan, Santucci and Luciano, JJ., concur.