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

361
KA 12-02198
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALBERT JACKSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered November 28, 2011. The judgment convicted
defendant, upon a jury verdict, of attempted burglary in the second
degree, possession of burglar’s tools, robbery in the second degree,
burglary in the first degree, reckless endangerment in the first
degree and unauthorized use of a vehicle in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reversing those parts convicting defendant
of robbery in the second degree, burglary in the first degree, and
unauthorized use of a vehicle in the first degree, suppressing the
statements made by defendant on November 17, 2010, reducing that part
convicting defendant of reckless endangerment in the first degree
under count nine of the indictment to reckless endangerment in the
second degree (Penal Law § 120.20) and vacating the sentence imposed
on that count and as modified the judgment is affirmed, a new trial is
granted on counts 5, 6 and 10 of the indictment, and the matter is
remitted to Supreme Court, Erie County, for sentencing on count nine
of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of attempted burglary in the second degree (Penal
Law §§ 110.00, 140.25 [2]), possession of burglar’s tools (§ 140.35),
robbery in the second degree (§ 160.10 [2] [a]), burglary in the first
degree (§ 140.30 [2]), reckless endangerment in the first degree (§
120.25), and unauthorized use of a vehicle in the first degree (§
165.08). Defendant’s conviction stems from events that occurred on
two separate days. On August 16, 2010, defendant was arrested after
the police observed him attempting to break into a house with a
screwdriver, and he gave a statement to the police denying that he was
attempting to break into the house. On November 17, 2010, a 71-year-
                                 -2-                           361
                                                         KA 12-02198

old man was stabbed several times upon encountering an intruder in his
garage. The intruder stole the victim’s wallet, cell phone, and
vehicle, and fled the scene. The victim contacted the police, and the
police tracked the location of the victim’s cell phone and located
defendant and three other individuals inside the victim’s vehicle.
Defendant, who was the driver of the vehicle, led the police on a
high-speed chase before crashing the vehicle. After he was arrested,
defendant gave statements at the police station admitting that he was
in the victim’s garage, attacked him, robbed him, stole the vehicle,
and led officers on a high-speed chase. Defendant’s statements
consisted of handwritten notes prepared by a police officer that
defendant signed, a typed statement that defendant also signed, and a
videotape of the interrogation, all of which were admitted in evidence
at trial.

     We agree with defendant that Supreme Court erred in failing to
suppress the statements he made to the police on November 17, 2010.
The evidence at the Huntley hearing established that a police officer
transporting defendant to the police station on that date began to
read the Miranda rights to defendant, but defendant interrupted the
officer after a few words and told him that he knew his rights. At
the police station, defendant was interviewed by a different officer
but was not read his Miranda rights until after he gave his
statements. We agree with defendant that his statements should have
been suppressed because he was not advised of his Miranda rights. It
is well settled that “[a]n individual taken into custody by law
enforcement authorities for questioning ‘must be adequately and
effectively apprised of his rights’ safeguarded by the Fifth Amendment
privilege against self-incrimination” (People v Dunbar, 24 NY3d 304,
313, quoting Miranda v Arizona, 384 US 436, 467). The Miranda
warnings “are an ‘absolute prerequisite to interrogation’ ” (id. at
314, quoting Miranda, 384 US at 471). Here, the court concluded that
defendant understood his rights based on the fact that he had been
given Miranda warnings before he gave his August 16, 2010 statement.
A court, however, does not “ ‘inquire in individual cases whether the
defendant was aware of his rights without a warning being given’ ”
(id. at 314, quoting Miranda, 384 US at 468). Defendant’s statements
made on November 17, 2010 must therefore be suppressed because the
Miranda warnings were not given until after defendant was interrogated
(see generally People v Chapple, 38 NY2d 112, 115).

     The suppression of defendant’s statements made on November 17,
2010 has no impact on his conviction of the charges arising from the
August 2010 incident or his conviction of reckless endangerment in the
first degree. We conclude, however, that a new trial is required for
the remaining counts because the court’s error in failing to suppress
the statements is not harmless. While we conclude that the evidence
of guilt, in particular the forensic evidence, is overwhelming, we
cannot conclude that there is no reasonable possibility that the error
might have contributed to the conviction (see People v Crimmins, 36
NY2d 230, 240-241). Defendant’s statements placed him in the victim’s
garage as the attacker despite the victim’s inability to identify him,
he added incriminating details that other witnesses could not provide,
and he corroborated details that other witnesses did provide.
                                 -3-                           361
                                                         KA 12-02198

Moreover, the jury acquitted defendant of several charges related to
the November 2010 burglary and robbery incident, and thus must not
have considered the evidence so overwhelming as to prove all counts.
We further note that the People do not argue that any error would be
harmless, and appear to agree that defendant’s confession was central
to their case. We therefore modify the judgment accordingly. In view
of our determination to grant a new trial on the remaining counts, we
address defendant’s contention that the conviction of burglary in the
first degree is not supported by legally sufficient evidence because
there was no door connecting the garage to the house. That contention
is not preserved for our review (see People v Gray, 86 NY2d 10, 19),
but it is without merit in any event (see People v Green, 141 AD2d
760, 761, lv denied 73 NY2d 786). Because “the garage in the present
case was structurally part of a [house] which was used for overnight
lodging . . . , it must be considered as part of a dwelling” (Green,
141 AD2d at 761). Defendant also failed to preserve for our review
his contention that the conviction of unauthorized use of a vehicle is
not supported by legally sufficient evidence (see Gray, 86 NY2d at
19), and we decline to exercise our power to review that contention as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).

     We reject defendant’s contention that he was denied effective
assistance of counsel. The constitutional right to effective
assistance of counsel “does not guarantee a perfect trial, but assures
the defendant a fair trial” (People v Flores, 84 NY2d 184, 187).
Viewing the evidence, the law, and the circumstances of this case, in
totality and as of the time of the representation, we conclude that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147). Defendant’s contention that prosecutorial
misconduct on summation deprived him of a fair trial is not preserved
for our review (see People v Johnson, 121 AD3d 1578, 1579), and is
without merit in any event.

     Defendant failed to preserve for our review his further
contention that the conviction of reckless endangerment in the first
degree is not supported by legally sufficient evidence (see Gray, 86
NY2d at 19), but we exercise our power to review that contention as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]), and we agree with defendant. The evidence established that
defendant acted recklessly when he led the police on a high-speed
chase in which he interfered with traffic, exceeded the speed limit,
and ran several red lights and stop signs before crashing the vehicle.
That evidence, without more, is insufficient to establish that
defendant acted with the requisite depraved indifference to support a
conviction of reckless endangerment in the first degree (see People v
Lostumbo, 107 AD3d 1395, 1396; see generally People v Maldonado, 24
NY3d 48, 55). We therefore further modify the judgment by reducing
the conviction of reckless endangerment in the first degree to
reckless endangerment in the second degree (Penal Law § 120.20), and
we remit the matter to Supreme Court for sentencing on that count (see
Lostumbo, 107 AD3d at 1396).
                                 -4-                           361
                                                         KA 12-02198

     We reject defendant’s contention that the court abused its
discretion in denying that part of his omnibus motion seeking
severance. Defendant “failed to make a convincing showing that he
would be unduly and genuinely prejudiced by the joint trial of the
charges” (People v Brown, 254 AD2d 781, 782, lv denied 92 NY2d 1029).
The People’s proof with respect to the events in August 2010 and
November 2010 was “straightforward and easily segregated” (People v
Daymon, 239 AD2d 907, 908, lv denied 94 NY2d 821; see People v Rios,
107 AD3d 1379, 1380, lv denied 22 NY3d 1158) and, indeed, the jury
acquitted defendant of some of the counts, thereby indicating that it
was able to consider each count separately (see Rios, 107 AD3d at
1380).

     Contrary to defendant’s contentions, the court did not abuse its
discretion in denying his request for youthful offender status (see
People v Potter, 13 AD3d 1191, 1191, lv denied 4 NY3d 889), and the
sentence imposed with respect to attempted burglary and possession of
burglar’s tools is not unduly harsh or severe.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
