        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

119
KA 10-00306
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN KELLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered July 9, 2009. The judgment convicted
defendant, upon a nonjury verdict, of burglary in the third degree and
criminal mischief in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, after a
nonjury trial, of burglary in the third degree (Penal Law § 140.20)
and criminal mischief in the fourth degree (§ 145.00 [1]), defendant
contends that County Court erred in refusing to suppress his
statements to the police because, inter alia, he was subjected to
custodial interrogation and thus Miranda warnings were required. We
reject that contention. In determining whether a defendant was in
custody for Miranda purposes, “[t]he test is not what the defendant
thought, but rather what a reasonable [person], innocent of any crime,
would have thought had he [or she] been in the defendant’s position”
(People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851). “[T]he
court ‘should consider: (1) the amount of time the defendant spent
with the police, (2) whether his freedom of action was restricted in
any significant manner, (3) the location and atmosphere in which the
defendant was questioned, (4) the degree of cooperation exhibited by
the defendant, (5) whether he was apprised of his constitutional
rights, and (6) whether the questioning was investigatory or
accusatory in nature’ ” (People v Lunderman, 19 AD3d 1067, 1068-1069,
lv denied 5 NY3d 830). In addition, “[t]he determination of a
suppression court must be accorded great weight ‘because of its
ability to observe and assess the credibility of the witnesses[,] and
its findings should not be disturbed unless clearly erroneous’ ”
(People v Jones, 9 AD3d 837, 838-839, lv denied 3 NY3d 708, 4 NY3d
745).
                                 -2-                          119
                                                        KA 10-00306

     Here, defendant was questioned for a maximum of 20 minutes in his
sister’s home, rather than at a police station, and there is no
evidence indicating that his freedom of movement was restricted in any
way. Indeed, the evidence at the suppression hearing established that
defendant was moving around within the room and changed his shirt
while the police spoke with him, and that his brother and sister were
present in the same room during the questioning. “Although the
questioning . . . may have been accusatory, that fact alone did not
render the interrogation custodial in nature” (People v Davis, 48 AD3d
1086, 1087, lv denied 10 NY3d 861; see generally Lunderman, 19 AD3d at
1068-1069). Consequently, the court properly concluded that defendant
was not in custody for Miranda purposes. We have considered
defendant’s remaining contention with respect to the suppression
ruling and conclude that it is without merit.

     Defendant failed to move for a trial order of dismissal, and thus
he failed to preserve for our review his further contention that the
conviction is not supported by legally sufficient evidence (see People
v Hawkins, 11 NY3d 484, 492; People v Gray, 86 NY2d 10, 19). In any
event, that contention lacks merit (see generally People v Bleakley,
69 NY2d 490, 495). Viewing the evidence in light of the elements of
the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict is against the
weight of the evidence (see generally Bleakley, 69 NY2d at 495).




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
