Opinion
Submitted November 8, 1999
December 13, 1999
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered February 5, 1998, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Starkey, J.), of that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement officials.
Jeffrey A. Rabin, Brooklyn, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Diane R. Eisner of counsel), for respondent.
FRED T. SANTUCCI, J.P., DANIEL W. JOY, ANITA R. FLORIO, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's claim that his statements should have been suppressed because he was arrested in his home without a warrant (see, Payton v. New York, 445 U.S. 573 ), is unpreserved for appellate review (see, CPL 470.05[2];People v. Morales, 250 A.D.2d 782). In any event, his claim is without merit because a reasonable person, innocent of any crime, would not have believed that he or she was in police custody (see, People v. Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851), and the hearing court properly found that the defendant was not forcibly removed from his home for questioning (see, People v. Carrier, 248 A.D.2d 628 ). Although the defendant also contends that his statements were obtained in violation of his Miranda rights (see, Miranda v. Arizona, 384 U.S. 436 ), the record supports the hearing court's finding that the defendant's statements were voluntarily made after he knowingly and intelligently waived his rights (see, People v. Prochilo, 41 N.Y.2d 759 ;People v. Levine, 174 A.D.2d 757 ).
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620 ), we find that it was legally sufficient to establish the defendant' s guilt beyond a reasonable doubt and that the defendant failed to sustain his burden of establishing, by a preponderance of the evidence, the applicability of the affirmative defense contained in Penal Law § 125.25(3) (see, People v. Jackson, 208 A.D.2d 862 ).
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., JOY, FLORIO, and LUCIANO, JJ., concur.