Property · MBE-tested

The People of the State of New York, Respondent, v. Randy J. Wood, Appellant

175 A.D.2d 637·New York Supreme Court, Appellate Division·1991·NY

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Opinion

The People of the State of New York, Respondent, v Randy J. Wood, Appellant. [MAJORITY] — Judgment unanimously affirmed. Memorandum: The court properly charged the jury how to decide whether defendant’s oral statement to the police was voluntarily made and whether defendant was in custody when he spoke (see, CPL 710.70 [3]; People v Graham, 55 NY2d 144). The court also properly denied defendant’s motion to suppress the statement. The court’s finding that defendant was not in custody is entitled to great weight (see, People v Leonti, 18 NY2d 384, 390, cert denied 389 US 1007) and is supported by the record (see, People v Yukl, 25 NY2d 585, 588, cert denied 400 US 851). The gun was properly seized in plain view (see, Horton v California, 496 US 128) following the police entry into the apartment upon consent of the tenant in control (see, People v Cosme, 48 NY2d 286, 290-292). (Appeal from Judgment of Niagara County Court, Hannigan, J. — Criminal Possession Weapon, 3rd Degree.) Present — Dillon, P. J., Callahan, Den-man, Green and Lowery, JJ.