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

93
KA 12-00206
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHELLE D. SPIRLES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered December 13, 2011. The judgment
convicted defendant, upon a jury verdict, of manslaughter in the first
degree.

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

     Memorandum: On appeal from a judgment convicting her, upon a
jury verdict, of manslaughter in the first degree (Penal Law § 125.20
[1]), defendant contends that Supreme Court erred in refusing to
suppress the statements she made to the first police officer who
responded to the crime scene, i.e., her home, in response to a 911
call. According to defendant, she was subjected to custodial
interrogation and was not Mirandized. We reject that contention. It
is well settled that “both the elements of police ‘custody’ and police
‘interrogation’ must be present before law enforcement officials
constitutionally are obligated to provide the procedural safeguards
imposed upon them by Miranda” (People v Huffman, 41 NY2d 29, 33; see
People v Anthony, 85 AD3d 1634, 1635, lv denied 17 NY3d 813). “Under
the circumstances [presented here], we conclude that a reasonable
person, innocent of any crime, would not have believed that he or she
was in police custody but, rather, would have believed that he or she
was being interviewed as a witness to a crime” (People v Debo, 45 AD3d
1349, 1350, lv denied 10 NY3d 809). Furthermore, the officer asked
only preliminary questions in an attempt to identify the victim and
determine what had happened to him, and “[i]t is well established that
threshold crime scene inquiries designed to clarify the situation and
questions that are purely investigatory in nature do not need to be
preceded by Miranda warnings” (People v Shelton, 111 AD3d 1334, 1336-
1337, lv denied 23 NY3d 1025 [internal quotation marks omitted]).
“This determination disposes of defendant’s further argument that
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                                                         KA 12-00206

[her] statement[s] to the investigator [at the police station were]
tainted by the alleged illegality of the [officer’s] initial
questioning” (People v Coffey, 107 AD3d 1047, 1050, lv denied 21 NY3d
1041; see People v Oakes, 57 AD3d 1425, 1426, lv denied 12 NY3d 786).

     Defendant failed to preserve for our review her further
contention that the court deprived her of her right of confrontation
by limiting her cross-examination of her landlord (see People v Liner,
9 NY3d 856, 856-857, rearg denied 9 NY3d 941; People v Castor, 99 AD3d
1177, 1181, lv denied 20 NY3d 1010), and we decline to exercise our
power to review it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). We otherwise reject defendant’s
contention that the court abused its discretion in sustaining the
prosecutor’s objection to the questioning of the landlord on cross-
examination concerning possible fraud by the witness. “Although a
witness may be questioned about prior bad acts which bear upon his [or
her] credibility, the questions must be asked in good faith and must
have a basis in fact” (People v Steele, 168 AD2d 937, 938, lv denied
77 NY2d 967) and, here, defense counsel failed to establish that she
had a good-faith basis for the questions at issue (see People v
Lester, 83 AD3d 1578, 1578-1579, lv denied 17 NY3d 818; People v
Dellarocco, 115 AD2d 904, 905, lv denied 67 NY2d 941).

     Defendant failed to preserve for our review her contention that
the prosecutor engaged in several instances of misconduct during
summation inasmuch as she failed to object to any of those instances
(see People v McEathron, 86 AD3d 915, 916, lv denied 19 NY3d 975). In
any event, the challenged comments were “ ‘either a fair response to
defense counsel’s summation or fair comment on the evidence’ ” (People
v Green, 60 AD3d 1320, 1322, lv denied 12 NY3d 915; see generally
People v Halm, 81 NY2d 819, 821).

     Defendant further contends that the court failed to conduct an
audibility hearing prior to ruling on the admissibility of a recording
of a witness’s 911 call. That contention is belied by the record,
however, which establishes that the court reviewed the recording in
open court with the attorneys present and concluded that it was
admissible (see e.g. People v Lubow, 29 NY2d 58, 68). Contrary to
defendant’s further contention, the court properly determined that the
recording was not “so inaudible and indistinct that the jury would
have to speculate concerning its contents” (People v Cleveland, 273
AD2d 787, 788, lv denied 95 NY2d 864; see People v Leeson, 299 AD2d
919, 919, lv denied 99 NY2d 560).

     We reject defendant’s contention that the court abused its
discretion in curtailing defense counsel’s cross-examination of the
officers during the suppression hearing. Defense counsel’s questions
were not relevant to the suppression issues before the court (see
generally People v Colvin, 112 AD3d 1348, 1348-1349, lv denied 22 NY3d
1155; People v Agostini, 84 AD3d 1716, 1717, lv denied 17 NY3d 857;
People v Rutley, 57 AD3d 1497, 1497, lv denied 12 NY3d 821). Finally,
we reject defendant’s contention that the cumulative effect of the
court’s alleged errors deprived her of a fair trial (see People v
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                                                         KA 12-00206

McKnight, 55 AD3d 1315, 1317, lv denied 11 NY3d 927; People v
Wurthmann, 26 AD3d 830, 831, lv denied 7 NY3d 765).




Entered:   February 5, 2016                    Frances E. Cafarell
                                               Clerk of the Court
