Opinion
KA 01-00788.
Decided April 30, 2004.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered February 5, 1999. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
PETER J. PULLANO, ROCHESTER, FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, 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: On appeal from a judgment convicting her following a jury trial of murder in the second degree (Penal Law § 125.25 [depraved indifference]), defendant contends that County Court erred in denying her motion to suppress her statement to police and further erred in permitting the People to introduce a statement made by defendant that was not included in the CPL 710.30 notice. We conclude that the court properly denied the suppression motion. The reliance by defendant on trial evidence in support of her contention is misplaced. It is well established that "defendant may not rely upon evidence presented at trial to challenge the court's determination of the suppression motion" ( People v. Pucci, 5 A.D.3d 1099, 1099 [Mar. 19, 2004]; see People v. Davis, 299 A.D.2d 891, lv denied 99 N.Y.2d 613). The court's determination that the statement was voluntarily made after defendant waived her Miranda rights is fully supported by the evidence adduced at the suppression hearing. There was no evidence at the hearing that defendant was "intoxicated to such a degree that [s]he was incapable of voluntarily, knowingly, and intelligently waiving [her] Miranda rights" ( People v. Downey, 254 A.D.2d 794, 795, lv denied 92 N.Y.2d 1031; see People v. Snider, 2 A.D.3d 1452) or that her statements were not otherwise voluntarily made ( see People v. Jones, 273 A.D.2d 889, lv denied 95 N.Y.2d 854). Contrary to defendant's further contention, a CPL 710.30 notice was not required because the challenged statement was elicited during rebuttal and was "offered solely for the purpose of impeachment" ( People v. Hill, 281 A.D.2d 917, 918, lv denied 96 N.Y.2d 902; see People v. Burks, 227 A.D.2d 905, 905-906, lv denied 88 N.Y.2d 981; People v. Mitchell, 155 A.D.2d 879, lv denied 76 N.Y.2d 739).
Defendant has failed to preserve for our review her contention that the conviction is not supported by legally sufficient evidence ( see People v. Gray, 86 N.Y.2d 10, 19). We conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495) and that the sentence is neither unduly harsh nor severe.