People v Mark Rushion

People v Rushion 2006 NY Slip Op 01315 [26 AD3d 448] February 21, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 19, 2006

The People of the State of New York, Respondent,
v
Mark Rushion, Appellant.

—[*1]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered May 12, 2003, convicting him of murder 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 officials.

Ordered that the judgment is affirmed.

There is no merit to the defendant's contention that his statements to law enforcement officials were involuntary. The totality of the circumstances surrounding the questioning, as established at the Huntley hearing (see People v Huntley, 15 NY2d 72 [1965]), supports the hearing court's conclusion that the defendant's written and videotaped statements were voluntarily made. The defendant was repeatedly advised of, and knowingly and intelligently waived, his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]; People v Williams, 62 NY2d 285 [1984]; People v Nelson, 171 AD2d 702 [1991]) and did not unequivocally invoke his right to counsel (see People v Cotton, 277 AD2d 461 [2000]). Furthermore, there was no evidence that the defendant's statements were obtained through threats or coercion (see People v Tarsia, 67 AD2d 210 [1979], affd 50 NY2d 1 [1980]; People v Miles, 276 AD2d 566 [2000]; People v Sakadinsky, 239 AD2d 443 [1997]).

The court providently exercised its discretion in denying the defendant's motion to set aside the verdict (see CPL 330.30 [3]; People v Rivera, 108 AD2d 829 [1985]; People v Lopez, 104 AD2d 904 [1984]), and the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). [*2]

The defendant's contention that he was deprived of his right to confront a polygraph examiner is without merit (see People v Rowe, 236 AD2d 637 [1997]). The defendant's remaining contention, raised in his supplemental pro se brief, is unpreserved for appellate review. H. Miller, J.P., Adams, Luciano and Rivera, JJ., concur.