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

958
KA 10-01126
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

PHILLIP L. JONES, DEFENDANT-APPELLANT.


WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Thomas R.
Morse, A.J.), rendered March 1, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree.

     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 criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]). Defendant contends that the People
failed to establish that he knowingly, voluntarily, and intelligently
waived his Miranda rights, and that County Court therefore erred in
refusing to suppress the statements he made to the police after the
arresting officer read him those rights. Specifically, defendant
contends that the evidence at the Huntley hearing demonstrates that he
did not waive his Miranda rights, but that he asked the arresting
officer “[w]hat’s going on” after the arresting officer read him the
Miranda warnings. Contrary to defendant’s contention, the court
properly refused to suppress those statements. It is well settled
that “an explicit verbal waiver is not required; an implicit waiver
may suffice and may be inferred from the circumstances” (People v
Smith, 217 AD2d 221, 234, lv denied 87 NY2d 977). Thus, “[w]here, as
here, a defendant has been advised of his Miranda rights and within
minutes thereafter willingly answers questions during interrogation,
‘no other indication prior to the commencement of interrogation is
necessary to support a conclusion that the defendant implicitly waived
those rights’ ” (People v Goncalves, 288 AD2d 883, 884, lv denied 97
NY2d 729, quoting People v Sirno, 76 NY2d 967, 968; see People v
Strahin, 114 AD3d 1284, 1285, lv denied 23 NY3d 968).

Entered:   September 26, 2014                      Frances E. Cafarell
                                                   Clerk of the Court
