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

1018
KA 10-00179
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

LOGAN D. CRANE, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered December 22, 2009. The judgment convicted
defendant, upon a jury verdict, of falsifying business records in the
first degree (three counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of three counts of falsifying business records in
the first degree (Penal Law § 175.10). Viewing the evidence in light
of the elements of the crimes as charged to the jury (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 People v
Bleakley, 69 NY2d 490, 495). Although a different result would not
have been unreasonable in light of the conflicting testimony at trial
(see generally id.), “it cannot be said that the jury failed to give
the testimony and the conflicting inferences that may be drawn
therefrom the weight they should be accorded” (People v McLean, 71
AD3d 1500, 1501, lv denied 14 NY3d 890).

     Contrary to the further contention of defendant, the verdict
finding him guilty of falsifying business records in the first degree
is neither repugnant to nor inconsistent with the verdict finding him
not guilty of grand larceny in the third degree (see generally People
v Trappier, 87 NY2d 55, 58-59). “Read as a whole, it is clear that
falsifying business records in the second degree is elevated to a
first-degree offense on the basis of an enhanced intent requirement[,]
. . . not any additional actus reus element” (People v Taveras, 12
NY3d 21, 27). Thus, “[t]he jury could . . . convict defendant of
falsifying business records if the jury concluded that defendant had
the intent to commit or conceal another crime, even if he was not
convicted of the other crime” (People v McCumiskey, 12 AD3d 1145,
                                 -2-                         1018
                                                        KA 10-00179

1146; see People v Houghtaling, 79 AD3d 1155, 1157-1158). In any
event, grand larceny in the third degree has a monetary threshold
(Penal Law § 155.35 [1]), which is an “essential element” that is not
an element of falsifying business records in the first degree
(Trappier, 87 NY2d at 58; see generally People v Tucker, 55 NY2d 1, 6-
8, rearg denied 55 NY2d 1039).

     Defendant further contends that County Court erred in refusing to
suppress statements that he made to the police on the ground that he
was in custody at the time and had not been administered Miranda
warnings. We reject defendant’s contention that he was in custody
when he made the statements. As the court properly determined, “ ‘a
reasonable person in defendant’s position, innocent of any crime,
would not have believed that he or she was in custody, and thus
Miranda warnings were not required’ ” (People v Daniels, 75 AD3d 1169,
1169, lv denied 15 NY3d 892; see generally People v Paulman, 5 NY3d
122, 129; People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851).
Although the interview between defendant and the police may be
characterized as accusatory in nature (see People v Lunderman, 19 AD3d
1067, 1068-1069, lv denied 5 NY3d 830; People v Robbins, 236 AD2d 823,
824-825, lv denied 90 NY2d 863), the record of the suppression hearing
establishes that it was not in fact “conducted in a police-dominated
atmosphere” (Robbins, 236 AD2d at 824). Indeed, the record
establishes that defendant voluntarily agreed to meet with the police
detective, who was not in uniform and was operating an unmarked police
vehicle; the interview occurred in the parking lot of a store;
defendant was not restrained in any manner during the interview; and
the detective specifically informed defendant that he “wasn’t there to
arrest him” (see People v Semrau, 77 AD3d 1436, 1437, lv denied 16
NY3d 746; People v Duda, 45 AD3d 1464, 1466, lv denied 10 NY3d 764;
cf. Robbins, 236 AD2d at 824-825). “It is well settled that, ‘where
there are conflicting inferences to be drawn from the proof, the
choice of inferences is for the [suppression court. T]hat choice is
to be honored unless unsupported, as a matter of law’ ” (Semrau, 77
AD3d at 1437), which cannot be said here.




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
