People v. Mallory — 175 A.D.2d 623

Majority

p. 623

The People of the State of New York, Respondent, v Sylvester Mallory, Jr., Appellant.

— Judgment unanimously affirmed. Memorandum: Defendant’s motion to suppress certain oral and written statements made to the police was properly denied. The statements made by defendant in the police vehicle resulted from a threshold police inquiry "designed to clarify the nature of the situation” rather than to obtain a confession (People v Huffman, 41 NY2d 29 , 34). Thus, those statements were not the product of custodial interrogation to which Miranda warnings are applicable (see, People v Huffman, supra; People v Stackhouse, 160 AD2d 822 , 823, lv denied 76 NY2d 865 ; People v Sims, 150 AD2d 402 , 403, lv denied 74 NY2d 747 ; People v Smith, 150 AD2d 738 , 739, lv

p. 624

denied 74 NY2d 819 ; People v Esposito, 138 AD2d 733 ; People v Brewer, 136 AD2d 831 , 832, lv denied 71 NY2d 966 ). The record supports the suppression court’s determination that, at the police station, defendant was fully apprised of his Miranda rights and that he knowingly, voluntarily and intelligently waived those rights and gave oral and written statements (see, People v Brainard, 122 AD2d 299 , lv denied 68 NY2d 913 ).

The admission into evidence of a photograph of the murder victim was proper (see, People v Bell, 63 NY2d 796 ; People v Pobliner, 32 NY2d 356 , cert denied 416 US 905 ). Finally, the sentence imposed was not harsh and excessive. (Appeal from Judgment of Erie County Court, D’Amico, J. — Murder, 2nd Degree.) Present — Boomer, J. P., Pine, Balio, Lawton and Davis, JJ.

Cases cited

People v. Stackhouse 160 AD2d 822 N.Y. App. Div. 1990-04-09 at 823 p. 623
People v. Smith 150 AD2d 738 N.Y. App. Div. 1989-05-22 at 739 p. 623
People v. Brewer 136 AD2d 831 N.Y. App. Div. 1988-01-21 at 832 p. 624
People v. Brainard 122 AD2d 299 N.Y. App. Div. 1986-07-03 p. 624
People v. Bell 63 NY2d 796 N.Y. 1984-10-09 p. 624
People v. Pobliner 32 NY2d 356 N.Y. 1973-05-04 p. 624