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

886
KA 09-02627
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

TIMOTHY ZUKE, DEFENDANT-APPELLANT.


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

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered June 16, 2009. The judgment convicted defendant,
upon his plea of guilty, of manslaughter in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of manslaughter in the second degree (Penal Law §
125.15 [1]), defendant contends that County Court erred in refusing to
suppress his second statement to the police, which was given eight
months after defendant had given a written statement to the police
following an initial interview by them. That contention, however, is
not properly before us. “[A]lthough the court issued a bench decision
with respect to [those parts of defendant’s omnibus motion seeking to
suppress his statements to the police,] the exception set forth in CPL
710.70 (2) allowing appellate review with respect to orders that
finally den[y] a motion to suppress evidence is not applicable because
defendant pleaded guilty before the court issued such an order”
(People v Ellis, 73 AD3d 1433, 1433-1434, lv denied 15 NY3d 851
[internal quotation marks omitted]; see People v McGinnis, 83 AD3d
1594). In addition, defendant’s contention that the court should have
suppressed the statement on the ground that the People presented
insufficient evidence at the suppression hearing is raised for the
first time on appeal and is therefore unpreserved for our review (see
People v Poole, 55 AD3d 1354, 1355, lv denied 11 NY3d 929; People v
Brooks, 26 AD3d 739, 740, lv denied 6 NY3d 846, 7 NY3d 810). In any
event, we conclude that suppression was not warranted on the ground
raised by defendant before the suppression court inasmuch as the
record establishes that defendant was not in custody when he gave his
second statement to the police and thus Miranda warnings were not
required at that time (see People v Stokes, 212 AD2d 986, lv denied 86
NY2d 741; People v Schultz, 176 AD2d 1239, lv denied 79 NY2d 832; see
                                 -2-                          886
                                                        KA 09-02627

generally People v Paulman, 5 NY3d 122, 129; People v Yukl, 25 NY2d
585, 588-589, cert denied 400 US 851).




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