Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Lynn LETA, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo P.C. (Eric M. Dolan of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Joseph Plukas of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo P.C. (Eric M. Dolan of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Joseph Plukas of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her following a nonjury trial of two counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25 ) and one count of identity theft in the second degree (§ 190.79[1] ). The charges arose from defendant's deposit of two forged checks into her bank account. Defendant contends that the conviction of identity theft is not supported by legally sufficient evidence because the People did not establish that she assumed the identity of another person. Defendant failed to preserve that contention for our review inasmuch as she moved for a trial order of dismissal on a different ground (see People v. Thomas, 136 A.D.3d 1390, 1390, 25 N.Y.S.3d 500, lv. denied 27 N.Y.3d 1140, 39 N.Y.S.3d 122, 61 N.E.3d 521, reconsideration denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 ) and she failed to renew the motion after presenting evidence (see People v. Graham, 148 A.D.3d 1517, 1517, 50 N.Y.S.3d 196 ). In any event, we reject that contention (see People v. Yuson, 133 A.D.3d 1221, 1221–1222, 20 N.Y.S.3d 263, lv. denied 27 N.Y.3d 1157, 39 N.Y.S.3d 391, 62 N.E.3d 131 ).
Contrary to defendant's further contention, we conclude that Supreme Court properly refused to suppress the statement she made to a police officer without the benefit of Miranda warnings. The record supports the court's determination that "a reasonable person in defendant's position, innocent of any crime, would not have believed that he or she was in custody, and thus Miranda warnings were not required" (People v. Lunderman, 19 A.D.3d 1067, 1068, 796 N.Y.S.2d 481, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 ). Based upon the testimony at the suppression hearing, the court properly concluded that the relevant factors weighed against a determination that defendant was in custody (see id. at 1068–1069, 796 N.Y.S.2d 481 ). Defendant invited the officer into her home, spoke with him at her kitchen table, moved about freely, and was not arrested until nearly three months later (see People v. Normile, 229 A.D.2d 627, 627–628, 645 N.Y.S.2d 337 ). In addition, the questioning was investigatory rather than accusatory (see People v. Smielecki, 77 A.D.3d 1420, 1421, 908 N.Y.S.2d 485, lv. denied 15 N.Y.3d 956, 917 N.Y.S.2d 115, 942 N.E.2d 326 ), the entire conversation lasted only 90 minutes (see People v. Nova, 198 A.D.2d 193, 194, 603 N.Y.S.2d 863, lv. denied 83 N.Y.2d 808, 611 N.Y.S.2d 144, 633 N.E.2d 499 ), and defendant was cooperative, never asked for questioning to cease, and never requested counsel (see People v. Mastin, 261 A.D.2d 892, 893, 690 N.Y.S.2d 801, lv. denied
93 N.Y.2d 1022, 697 N.Y.S.2d 581, 719 N.E.2d 942 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.