People v. Fitzgerald

Sep 11, 2000
Versions:275 A.D.2d 720
713 N.Y.S.2d 291
2000 N.Y. App. Div. LEXIS 9132

—Appeal by the defendant from a judgment of the County Court, Orange County (Byrne, J.), rendered April 16, 1997, convicting him of murder in the second degree and criminal possession of a weapon 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 statements he made to law enforcement authorities.

Ordered that the judgment is affirmed.

The defendant’s contention that his right against self-incrimination was violated is without merit. Under the circumstances of this case, the defendant’s decision to terminate his polygraph examination, which was undertaken after he was advised of and effectively waived his Miranda rights (see, Miranda v Arizona, 384 US 436), did not demonstrate an unequivocal and unqualified desire to assert his right to remain silent so as to render his subsequent questioning unlawful (see, Michigan v Mosley, 423 US 96; People v Ferro, 63 NY2d 316, cert denied 472 US 1007; People v Morton, 231 AD2d 927). Further, the polygraph examination did not constitute coercion. A confession made following voluntary participation in a polygraph examination is admissible where, as here, the circumstances indicate that the confession was not coerced (see, People v Tarsia, 50 NY2d 1).

The defendant’s remaining contentions are unpreserved for appellate review or without merit. Ritter, J. P., Santucci, Florio and H. Miller, JJ., concur.