People v. Powers

• Decision Date: 30 September 1996
• Citation: 648 N.Y.S.2d 119,231 A.D.2d 744
• Parties: The PEOPLE, etc., Respondent, v. Sidney POWERS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 119

648 N.Y.S.2d 119

231 A.D.2d 744

The PEOPLE, etc., Respondent, v. Sidney POWERS, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 30, 1996.

Yasmin Daley Duncan, Brooklyn, for appellant.

William V. Grady, District Attorney, Poughkeepsie (Bridget Rahilly Steller of counsel), for respondent.

Before MILLER, J.P., and ALTMAN, HART and McGINITY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Marlow, J.), rendered September 1, 1993, convicting him of murder in the second degree (two counts), robbery in the first degree (two counts), and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

Contrary to the defendant's claim, his statements to the police were voluntary. A review of the hearing transcript reveals that the defendant readily agreed to go to police headquarters. He was neither searched nor handcuffed, either when transported there or during questioning (see, People v. Lovette, 212 A.D.2d 639, 622 N.Y.S.2d 588). He never expressed a desire to leave the interview room, and was not arrested until after he made a second, taped statement. Furthermore, Miranda warnings were administered to him several times during the evening (see, e.g., People v. Smith, 208 A.D.2d 966, 617 N.Y.S.2d 884) and he was permitted to call a relative. Although the police told the defendant on several occasions that they did not believe his story, and that they thought that he was lying, this method of questioning was not so fundamentally unfair as to deny the defendant due process of law (see, People v. Ingram, 208 A.D.2d 561, 616 N.Y.S.2d 780). The evidence adduced at trial regarding the voluntariness of the defendant's statements to the police was insufficient to raise a factual dispute with regard to that issue, and therefore, the trial court properly refused to charge the jury on it (see, CPL 710.70[3]; People v. Cefaro, 23 N.Y.2d 283, 286, 296 N.Y.S.2d 345, 244 N.E.2d 42; People v. Miner, 213 A.D.2d 429, 624 N.Y.S.2d 883).

We find no merit to the defendant's argument that the court erred in refusing to charge the lesser-included offense of manslaughter in the second degree. Any challenge on this point is foreclosed by the jury's verdict of...