Opinion
KA 01-01272
June 13, 2003.
Appeal from a judgment of Cattaraugus County Court (Himelein, J.), entered September 12, 2000, convicting defendant after a jury trial of, inter alia, burglary in the first degree (two counts).
D.J. J.A. CIRANDO, ESQS., SYRACUSE (SUSAN R. RIDER OF COUNSEL), FOR DEFENDANT-APPELLANT.
EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY, FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of two counts each of burglary in the first degree (Penal Law 140.30, [3]), assault in the first degree (120.10 [1], [4]) and assault in the second degree (120.05 [1], [6]), one count of reckless endangerment in the first degree (120.25), and three counts of criminal possession of a weapon in the third degree (265.02 [1]). Defendant has failed to preserve for our review his contention that the police should have repeated the Miranda warnings previously issued because he was not in continuous police custody ( see People v. Kemp, 266 A.D.2d 887, lv denied 94 N.Y.2d 921). In any event, that contention is without merit. "[W]here a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous," and here, contrary to defendant's contention, the custody was continuous ( People v. Glinsman, 107 A.D.2d 710, 710, lv denied 64 N.Y.2d 889, cert denied 472 U.S. 1021; see People v. Leflore, 303 A.D.2d 1041 [Mar. 21, 2003]; People v. Chatman, 281 A.D.2d 964, 965-966, lv denied 96 N.Y.2d 899; People v. Fontanez, 278 A.D.2d 933, 934, lv denied 96 N.Y.2d 862). Defendant similarly has failed to preserve for our review his contention that County Court abused its discretion in permitting the People to present the testimony of a witness who was not on their witness list ( see People v. McCray, 227 A.D.2d 900, lv denied 89 N.Y.2d 866; see also People v. Tevaha, 84 N.Y.2d 879). In any event, that contention is lacking in merit under the circumstances of this case ( see People v. Shabazz, 246 A.D.2d 831, 832 , lv denied 91 N.Y.2d 945, 92 N.Y.2d 905; People v. Williams, 243 A.D.2d 833, 837, lv denied 91 N.Y.2d 926, 931).
Defendant has failed to preserve for our review his challenges to the legal sufficiency of the evidence to support his conviction of various counts ( see People v. Finger, 95 N.Y.2d 894, 895; People v. Gray, 86 N.Y.2d 10, 19). In any event, those challenges are lacking in merit. The evidence is legally sufficient to establish that defendant knowingly entered the victim's home unlawfully and with criminal intent and thus is legally sufficient to support the conviction of two counts of burglary in the first degree ( see People v. Horn, 302 A.D.2d 975; People v. Prober, 298 A.D.2d 966, lv denied 99 N.Y.2d 538). The evidence also is legally sufficient to establish, in support of the conviction of two counts of assault in the first degree, that defendant intended to cause serious physical injury to the victim ( see Penal Law 120.10; People v. Askerneese, 256 A.D.2d 34, 34-35, affd 93 N.Y.2d 884; People v. Campbell, 300 A.D.2d 501, 502) and inflicted such injury during his commission of a burglary ( see 120.10 [4]; People v Griffin, 300 A.D.2d 743, 743-744). With respect to the challenge of defendant to the conviction of two counts of assault in the second degree involving a different victim, we similarly conclude that the evidence is legally sufficient to establish his intent to inflict physical injury upon the victim ( see 120.05 [1]) and that he inflicted such injury during the commission of a burglary ( see 120.05 [6]). We further conclude that the evidence is legally sufficient to establish, in support of the conviction of reckless endangerment in the first degree, that defendant, "under circumstances evincing a depraved indifference to human life," recklessly engaged in conduct that created "a grave risk of death to another person" (120.25; see People v. Lynch, 95 N.Y.2d 243, 247-248; People v. Chrysler, 85 N.Y.2d 413, 415).
We have examined defendant's remaining contentions and conclude that they are lacking in merit.