Opinion
2014-01-22
The PEOPLE, etc., respondent, v. Tyreen BROWN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Adam M. Koelsch of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered October 31, 2011, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Tomei, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
Contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress statements he made to law enforcement officials after he was advised of his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). A court generally must look to the totality of the circumstances to determine the voluntariness of an inculpatory statement ( see People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318; People v. Gega, 74 A.D.3d 1229, 1230–1231, 904 N.Y.S.2d 716). “The factors to be examined in determining the totality of the circumstances surrounding a defendant's confession include the duration and conditions of detention, the attitude of the police toward the defendant, and the age, physical state, and mental state of the defendant” (People v. Gega, 74 A.D.3d at 1230–1231, 904 N.Y.S.2d 716; see People v. Baker, 208 A.D.2d 758, 758–759, 617 N.Y.S.2d 798). “Where, as here, a person in police custody was issued Miranda warnings and waived those rights voluntarily and intelligently, ‘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' ” (People v. Petronio, 34 A.D.3d 602, 604, 825 N.Y.S.2d 99, quoting People v. Glinsman, 107 A.D.2d 710, 710, 484 N.Y.S.2d 64). The record supports the Supreme Court's determination that, under the circumstances presented here, the defendant's statements were not involuntary ( see People v. Gega, 74 A.D.3d at 1230–1231, 904 N.Y.S.2d 716; People v. Petronio, 34 A.D.3d at 604, 825 N.Y.S.2d 99; People v. Glinsman, 107 A.D.2d at 710, 484 N.Y.S.2d 64; cf. People v. Zappulla, 282 A.D.2d 696, 724 N.Y.S.2d 433).
However, the defendant is entitled to be resentenced. Certain remarks made by the Supreme Court demonstrate that it improperly considered the crime of which the defendant was acquitted as a basis for sentencing ( see People v. Grant, 94 A.D.3d 1139, 1141–1142, 942 N.Y.S.2d 223; People v. Pacquette, 73 A.D.3d 1088, 900 N.Y.S.2d 683; People v. Romero, 71 A.D.3d 795, 896 N.Y.S.2d 417; People v. Schrader, 23 A.D.3d 585, 806 N.Y.S.2d 613; People v. Santiago, 277 A.D.2d 258, 259, 715 N.Y.S.2d 73).
The defendant's contention that the sentence imposed was excessive need not be reached in light of our determination.
The defendant's challenge to the admission of certain photographs is unpreserved for appellate review.
The defendant's contention that he received ineffective assistance of counsel is without merit. DILLON, J.P., DICKERSON, AUSTIN and SGROI, JJ., concur.