                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    106336
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

AUDELIS CRUZ,
                    Appellant.
________________________________


Calendar Date:   February 16, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Andrew Kossover, Public Defender, Kingston (Michael K.
Gould of counsel), for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered November 7, 2013, upon a verdict
convicting defendant of the crimes of murder in the second degree
and petit larceny.

      In February 2013, Anita Jacobs-Royer (hereinafter the
victim) was discovered dead in her residence in the City of
Kingston, Ulster County. An autopsy revealed that the victim had
been strangled and, by the time she was discovered, she had been
dead for approximately 48 hours. During the ensuing
investigation, surveillance video was recovered showing the
victim with defendant two days before her body was discovered,
the victim's car was found abandoned behind the hotel where
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defendant had been staying, and defendant's wife reported to a
police investigator that defendant had just given her a new
camera and the serial number on the camera matched that found on
an empty box in the victim's home. On February 10, 2013,
defendant was arrested in New York City for a parole violation
and was transported to the Department of Corrections in Long
Island City, Queens County. During a subsequent interview,
defendant admitted to two officers from the Kingston Police
Department that he strangled and killed the victim.

      In March 2013, defendant was indicted for the crimes of
murder in the second degree and petit larceny. After a pretrial
Huntley hearing, County Court ruled that the statements that
defendant made to the investigators were voluntary. At the jury
trial, the audio recording of defendant's interview with the
police was submitted as evidence and officers were allowed to
testify with regard to telephone calls that defendant had made to
his family during the interview. Ultimately, defendant was
convicted as charged and sentenced to an aggregate prison term of
25 years to life. Defendant appeals, arguing only that County
Court should not have permitted the statements he made to the
police to be introduced as evidence.

      A statement by a defendant is involuntary and thus
inadmissible if it is obtained through "undue pressure" or "by
means of any promise or statement of fact, which promise or
statement creates a substantial risk that the defendant might
falsely incriminate himself [or herself]" (CPL 60.45 [2] [a], [b]
[i]; see People v Neal, 133 AD3d 920, 922 [2015], lv denied 26
NY3d 1110 [2016]). It is the People's burden to prove beyond a
reasonable doubt that statements were voluntary (see People v
Mattis, 108 AD3d 872, 874 [2013], lv denied 22 NY3d 957 [2013]).
The issue is a factual one resolved after consideration of the
totality of the circumstances, and we accord deference to the
trial court's credibility determinations (see People v Perkins,
124 AD3d 1062, 1063 [2015], lv denied 26 NY3d 933 [2015]; People
v Whitted, 117 AD3d 1179, 1181 [2014], lv denied 23 NY3d 1026
[2014]).

      At the Huntley hearing, Eric VanAllen – a detective with
the Kingston Police Department – testified that he and another
                              -3-                106336

detective, Richard Tierney, traveled from Kingston to Long Island
City after learning that defendant had been arrested on a parole
warrant. VanAllen further testified that he introduced himself
to defendant and advised that they would be taking him back to
Kingston for questioning and defendant said, "let's talk now."
Defendant was taken to a conference room where he, VanAllen and
Tierney ate fast food together. VanAllen testified that when
they finished eating, he read defendant his Miranda warnings from
a card, asked defendant whether he understood the warnings and
whether he was willing to answer questions. VanAllen testified
that defendant agreed and answered their questions for
approximately 20 minutes before VanAllen left to get an audio
recorder. The audiotape of the interview was submitted to County
Court for review.

      During the remainder of the interview that lasted
approximately 45 minutes, defendant was allowed to telephone his
daughter and wife and was given breaks to use the restroom and
smoke cigarettes. When VanAllen asked defendant, "like I told
you before . . . your Miranda warnings, you understand those,"
defendant responded, "you really have to record this?" Defendant
proceeded to explain that he "just snapped" and strangled the
victim from behind with his hands before tying a shoestring
around her neck. Later, VanAllen asked defendant, "you still
understand your Miranda warnings?" and defendant responded, "Yeah
I know that." During the telephone call that was made in the
officers' presence and included as part of the audiotape,
defendant told his wife, "That camera I got from somebody that I
killed." Defendant acknowledged during the interview that the
officers had treated him fairly and with respect and that he was
telling the truth.

      We find that County Court properly denied defendant's
motion to suppress his statements. The court credited
VanAllen's testimony that the Miranda warnings were given but not
recorded because they did not initially plan to question
defendant in Long Island City and that once questioning was
underway and the recording began, he did not want to "stop the
flow" of the interview to issue the Miranda warnings again. At
no point during the interview or during defendant's conversations
with his wife did defendant ever ask to speak with or retain an
                              -4-                  106336

attorney (see People v Jabaut, 111 AD3d 1140, 1141-1142 [2013],
lv denied 22 NY3d 1139 [2014]; People v Cole, 24 AD3d 1021, 1022
[2005], lv denied 6 NY3d 832 [2006]). Although VanAllen
testified that defendant clearly appeared to be homeless and that
defendant stated "that he had been doing drugs for the past week
or so," he described defendant as "mentally coherent," and the
audiotape recording does not evince otherwise. Accordingly,
based on the totality of the circumstances, and giving the
requisite deference to County Court's credibility determinations,
we agree that the People established that defendant waived his
Miranda rights and that his statements were voluntary (see People
v DeAngelo, 136 AD3d 1119, 1120 [2016]; People v Nadal, 131 AD3d
729, 729-730 [2015], lv denied 26 NY3d 1041 [2015]; People v
Jabaut, 111 AD3d at 1142; People v Hughes, 280 AD2d 694, 695
[2001], lv denied 96 NY2d 801 [2001]).

     McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
