Opinion
362
March 15, 2002.
Appeal from a judgment of Oswego County Court (Mulroy, J.), entered August 29, 1997, convicting defendant after a jury trial of manslaughter in the second degree and by plea of guilty of, inter alia, reckless endangerment in the first degree (six counts).
D.J. J.A. Cirando, ESQS., Syracuse (John A. Cirando of counsel), for defendant-appellant.
Dennis N. Hawthorne, Sr., District Attorney, Oswego (Donald E. Todd of Counsel), for plaintiff-respondent.
PRESENT: PIGOTT, JR., P.J., PINE, HAYES, HURLBUTT, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant was convicted upon his plea of guilty of six counts of reckless endangerment in the first degree (Penal Law § 120.25) and one count of criminal mischief in the third degree (Penal Law § 145.05). In addition, he was convicted following a jury trial of manslaughter in the second degree (Penal Law § 125.15). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus has failed to preserve for our review his challenge to the factual sufficiency of the plea allocution ( see, People v. Lopez, 71 N.Y.2d 662, 665). In any event, that challenge lacks merit. "[T]here is no requirement that a defendant personally recite the facts underlying his or her crime" ( People v. Kinch, 237 A.D.2d 830, 831, lv denied 90 N.Y.2d 860; see, People v. Every, 272 A.D.2d 947, 947-948, lv denied 95 N.Y.2d 865). County Court properly refused to suppress two written statements that defendant gave to the police. Contrary to the contention of defendant, he was not in custody prior to receiving Miranda warnings ( see, People v. Williams, 283 A.D.2d 998, 999, lv denied 96 N.Y.2d 926; People v. Schraenkler, 221 A.D.2d 1003, lv denied 87 N.Y.2d 977, 88 N.Y.2d 885). Defendant voluntarily accompanied the police, he was not restrained in any way, and he understood that he was free to leave at any time ( see, People v. Williams, supra, at 999). Contrary to the further contention of defendant, he did not unequivocally request counsel when he asked the police whether he needed an attorney ( see, People v. Hicks, 69 N.Y.2d 969, 970, rearg denied 70 N.Y.2d 796; People v. Ashraf, 186 A.D.2d 1057, 1057-1058, lv denied 80 N.Y.2d 1025).
Defendant contends that the evidence is legally insufficient to support the conviction of manslaughter because the accomplice testimony was not corroborated. That contention is not preserved for our review ( see, CPL 470.05), and in any event is without merit. Defendant's two statements to the police corroborated the testimony of two witnesses who were accomplices ( see, People v. Burgin, 40 N.Y.2d 953, 954; People v. Drax, 256 A.D.2d 1205, 1206, lv denied 94 N.Y.2d 902). Defendant also failed to preserve for our review his contention that the court erred in failing to charge the jury that three other witnesses were accomplices ( see, People v. Keefer, 233 A.D.2d 880, lv denied 89 N.Y.2d 986). In any event, that contention is also without merit. "[T]here is no evidence from which it can be reasonably inferred that [those witnesses] participated in the planning or execution of the crimes" ( People v. Jones, 73 N.Y.2d 902, 903, rearg denied 74 N.Y.2d 651; see, People v. Jackson, 182 A.D.2d 1086, lv denied 80 N.Y.2d 895; People v. Lyon, 134 A.D.2d 909, 909-910, lv denied 71 N.Y.2d 970).
In view of the nature of the offenses, the sentence is not unduly harsh or severe. We have considered defendant's remaining contention and conclude that it is without merit.