People v. Dunlap

24 A.D.3d 1318, 805 N.Y.S.2d 869

Opinion

Appeal from a judg ment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered May 21, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25 [3]). Contrary to defendant’s contention, the sentence is not unduly harsh or severe. Also contrary to defendant’s contention, Supreme Court properly determined that defendant had the ultimate burden of proving that he did not intelligently waive his Miranda rights. “Where, as here, the People have initially demonstrated the legality of the police conduct and defendant’s waiver, the burden of persuasion on the motion to suppress rests with defendant” (People v Shields, 125 AD2d 863, 864 [1986], lv denied 69 NY2d 955 [1987]; see People v Love, 57 NY2d 998 [1982]; People v Drumm, 15 AD3d 910 [2005], lv denied 4 NY3d 853 [2005]; People v King, 234 AD2d 923, 924, lv denied 89 NY2d 1012 [1997]). Present— Pigott, Jr., P.J., Hurlbutt, Scudder, Smith and Lawton, JJ.