People v. Kemp

266 A.D.2d 887, 698 N.Y.S.2d 140, 1999 N.Y. App. Div. LEXIS 11929

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant was convicted following a jury trial of attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [3]) and sexual abuse in the first degree (Penal Law § 130.65 [3]). Defendant contends that the Miranda warnings should have been repeated after a four-hour break in the interrogation. Defendant failed to raise that contention at the suppression hearing and thus has failed to preserve it for our review (see, CPL 470.05 [2]; People v DiLenola, 245 AD2d 1132; People v Mota, 243 AD2d 316, lv denied 91 NY2d 835). In any event, defendant’s contention is without merit. “ Tt is well settled that where a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous’ ” (People v Stanton, 162 AD2d 987, lv denied 76 NY2d 991, quoting People v Glinsman, 107 AD2d 710, lv denied 64 NY2d 889, cert denied 472 US 1021; see, People v Thomas, 233 AD2d 347, lv denied 89 NY2d 1102; People v Baker, 208 AD2d 758, lv denied 85 NY2d 905).

The contention of defendant that his statements to police were involuntary or improperly obtained because he was in the throes of a diabetic reaction and was taking medication for a psychiatric condition is also unpreserved for our review (see, CPL 470.05 [2]; People v DiLenola, supra; People v Mota, supra; People v Sutton, 111 AD2d 197, lv denied 66 NY2d 768) and in any event is lacking in merit. “[Biased on the totality of the circumstances [citations omitted], including the duration and conditions of detention, the attitude of the police toward the defendant, and the age, physical state and mental state of the defendant” (People v Baker, supra, at 758-759; see also, People v Sakadinsky, 239 AD2d 443, lv denied 90 NY2d 897), we conclude that the People proved beyond a reasonable doubt that defendant’s statements were voluntary. (Appeal from Judgment of Niagara County Court, Hannigan, J. — Attempted Rape, 1st Degree.) Present — Denman, P. J., Green, Scudder, Callahan and Balio, JJ.