Opinion
Submitted June 1, 1999
August 9, 1999
Ethel P. Ross, Rye, N.Y., for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Kenneth A. Christie and Maryanne Luciano of counsel), for respondent.
DAVID S. RITTER, J.P., WILLIAM C. THOMPSON, DANIEL W. JOY, HOWARD MILLER, JJ.
DECISION ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cowhey, J.), rendered June 24, 1997, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement personnel.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, his initial statements to the police were not made while in a custodial setting and therefore did not require that he be advised of his Miranda rights ( see, People v. Jones, 228 A.D.2d 522; People v. Bailey, 140 A.D.2d 356). The defendant voluntarily went to the precinct, manifested a willingness to aid police in their investigation, was unrestrained at all relevant times and left alone for approximately two hours, and the door to the room in which he sat was completely open. Further, any questioning was wholly investigatory, not accusatory.
Regarding the defendant's subsequent post- Miranda statements, we find that, contrary to his assertions, the defendant was properly advised of his Miranda rights ( see, People v. Chapple, 38 N.Y.2d 112), and that he knowingly and intelligently waived them ( see, People v. Love, 85 A.D.2d 799, affd 57 N.Y.2d 998).
Further, viewing the evidence in the light most favorable to the People ( 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 the jury was entitled to find that the defendant created a grave risk of serious injury or death and did cause the child's death under circumstances evincing a depraved indifference to human life ( see, Penal Law 125.25; People v. Curry, 158 A.D.2d 466, 467; People v. Roe, 74 N.Y.2d 20, 24; People v. Register, 60 N.Y.2d 270, 274, cert denied 466 U.S. 953).
The sentence imposed was not excessive ( see, People v. Suitte, 90 A.D.2d 80; People v. Junco, 43 A.D.2d 266, 268, affd 35 N.Y.2d 419, cert denied 421 U.S. 951).
The defendant's remaining contentions are either unpreserved for appellate review ( see, CPL 270.05) or without merit.
RITTER, J.P., THOMPSON, JOY, and H. MILLER, JJ., concur.