People v. Almodovar

196 A.D.2d 718, 601 N.Y.S.2d 914, 1993 N.Y. App. Div. LEXIS 8471

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 16, 1993
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Ira Globerman, J., at hearing; Edward Davidowitz, J., at trial and sentence), rendered April 16, 1992, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 8 to 24 years imprisonment, unanimously affirmed.

There is no merit to the defendant’s argument that he was subjected to custodial interrogation without being advised of his Miranda rights. Defendant while at home, moved freely about the apartment and, was asked politely to go to the precinct house (see, People v White, 164 AD2d 413, 417, affd 79 NY2d 900). Thereafter, he was at no point deprived of food, sleep or outside contacts (see, People v Acquaah, 167 AD2d 313, 315, lv denied 78 NY2d 961). In short, the hearing court properly found that there was no police "conduct that would indicate any hint of official force that is normally associated with custody” (People v Morales, 129 AD2d 440, 443). Defendant’s contention that the trial court failed to conduct a "probing and tactful inquiry” into a juror’s request to be excused in mid-deliberation because of duress and intimidation in the jury room is unpreserved for review as a matter of law. Further, no protest was made during the inquiry that was had of the juror or during the charge to the entire jury that followed (see, People v Barcliff, 178 AD2d 285, 286, lv denied 79 NY2d 997). Given the presumption that the jury followed the court’s curative instructions, we decline to review in the interest of justice. Concur—Rosenberger, J. P., Wallach, Asch and Rubin, JJ.