ORDERED that the judgment is affirmed. The defendant contends that the Supreme Court erred in denying those branches of his omnibus motion which were to suppress inculpatory statements he made while in a holding cell at a police station before Miranda warnings (see Miranda v Arizona, 384 US 436) were given and inculpatory statements he later made during a videotaped interrogation after he waived his Miranda rights, since the statements were involuntary due to his intoxication and were the result of a continuing custodial interrogation that began at the scene of the crime before the administration of Miranda warnings.
While intoxication or the influence of narcotics are factors to be considered when determining voluntariness, such a condition typically will not render a statement involuntary unless it is demonstrated that the defendant was intoxicated to a degree of mania or of being unable to understand the meaning of his statements (see People v Sosa, 208 AD3d 523, 524; People v Martinez, 164 AD3d 1260, 1261). Here, there was no evidence that the defendant was intoxicated to such a degree as to render his statements involuntary.
A statement prior to the defendant being read Miranda warnings will not be suppressed so long as it was "voluntary, spontaneous, and not the result of any police conduct or questioning that reasonably could have been expected to elicit an inculpatory response" (People v Cuevas, 207 AD3d 557, 557; see Rhode Island v Innis, 446 US 291, 300-301). There is no merit to the defendant's contention that the inculpatory statements he made while in the holding cell should have been suppressed because an officer placed the defendant in an environment that was likely to elicit an incriminating response. "The Miranda rule protects the privilege against self-incrimination [*2]and, because the privilege applies only when an accused is compelled to testify, the safeguards required by Miranda are not triggered unless a suspect is subject to custodial interrogation" (People v Paulman, 5 NY3d 122, 129 [internal quotation marks omitted]). Under the circumstances presented, the defendant's statements in the holding cell were spontaneous and not triggered by police questioning or other conduct that reasonably could have been expected to elicit a declaration from him (see People v Watson, 214 AD3d 911, 912; People v Foster, 153 AD3d 853, 854).
However, the Supreme Court should have suppressed the defendant's videotaped interrogation. "[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events,
1
there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed" (People v Dorvil, 175 AD3d 708, 710; see People v Paulman, 5 NY3d at
129). To determine whether there is a single continuous chain of events, courts should consider "a number of factors, including the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police"
(People v White, 10 NY3d 286, 291 [emphasis and internal quotation marks omitted]; see People v Paulman, 5 NY3d at 130-131). Here, contrary to the defendant's contention, there was a definite, pronounced break between an improper unwarned statement made by the defendant to a different police officer five hours earlier at the scene of the crime and the videotaped interrogation, which gave the defendant ample time for reflection and was sufficient to remove any potential taint of the prior unwarned statement (see People v Paulman, 5 NY3d at 131; People v McIntyre, 138 AD2d 634, 637). However, at the start of the videotaped interrogation, the defendant was briefly questioned prior to the Miranda warnings being administered. Although this initial exchange was brief, and the defendant did not make a statement that was either inculpatory or related to the shooting until after the Miranda warnings were properly administered and after he had properly waived his Miranda rights (see People v White, 10 NY3d at 291), the pre- Miranda questioning "was not mere 'small talk,' but, rather, interrogation" (People v Dorvil, 175 AD3d at 710) involving the defendant's relationship with the victim (see People v Daniel, 122 AD3d 401, 404). Where there was no break in time between the pre-Miranda and post-Miranda questioning, no change of location, no change in the nature of the interrogation, and no change of police personnel, it cannot be said that there was "such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v Chapple, 38 NY2d 112, 115; see People v Dorvil, 175 AD3d at 710; cf. People v White, 10 NY3d at 291).
Accordingly, the entire videotaped interrogation should have been suppressed. However, the error in admitting the videotaped interrogation into evidence was harmless, since the evidence of the defendant's guilt without reference to the erroneously admitted statements was overwhelming, and there is no reasonable possibility that any error in admitting the defendant's statements could have contributed to the defendant's convictions (see People v Hillard, 151 AD3d 743, 744; People v Reardon, 124 AD3d 681, 684).
The defendant contends that the evidence was legally insufficient to support his conviction of murder in the second degree because the People failed to prove that he acted with intent to kill the victim and his intoxication rendered him incapable of forming the requisite intent. The general rule is that "an intoxicated person can form the requisite criminal intent to commit a crime, and it is for the trier of fact to decide if the extent of the intoxication acted to negate the element of intent" (People v Zapata, 98 AD3d 539, 540 [internal quotation marks omitted]; see People v Fenelon, 148 AD3d 1051, 1052). In viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People [*3]v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt of murder in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633). The defendant's intent to kill the victim can be inferred from the defendant's conduct and the surrounding circumstances (see People v Bracey, 41 NY2d 296, 301; People v Johns, 210 AD3d 1108, 1109; People v Gibson, 163 AD3d 586, 587).
The defendant's contention that he was deprived of a fair trial by certain of the prosecutor's comments during summation is unpreserved for appellate review because the defendant failed to object to the comments at issue or move for a mistrial on that ground (see CPL 470.05[2]; People v Profit, 237 AD3d 752; People v Robinson, 228 AD3d 960,
961). In any event, the defendant's contention is without merit. Most of the challenged comments made by the prosecutor during summation constituted fair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109-110; People v Herb, 110 AD3d 829, 831). To the extent that some of the challenged comments were improper, they were not so pervasive or egregious as to have deprived the defendant of a fair trial (see People v Robinson, 228 AD3d at 961; People v Bethea, 159 AD3d 710, 712).
The defendant's contentions that the Supreme Court's denial of his request for an adjournment deprived him of his constitutional right to a fair trial and to present a defense are unpreserved for appellate review (see CPL 470.05[2]; People v Fay, 170 AD3d 404, 406). In any event, the contentions are without merit. "The decision to grant or deny an adjournment request is committed to the trial court's sound discretion" (People v Cooper, 192 AD3d 823, 823), although where, as here, "the protection of fundamental rights is involved, the trial court's discretion is 'more narrowly construed'" (People v Stewart, 89 AD3d 1044, 1044-1045, quoting People v Spears, 64 NY2d 698, 700). Here, the court providently exercised its discretion in denying the defendant's request for an adjournment to obtain additional hospital records and a testifying witness, as the request was made shortly before summations (see People v Migranyan, 237 AD3d 1109), and there was no showing that the hospital records or testimony would be material or favorable to the defendant's defense (see Matter of Matter of Anthony M., 63 NY2d 270, 284; People v Foy, 32 NY2d 473, 476). The Supreme Court's inclusion of a substantive instruction not authorized by CPL 310.20(2) on the verdict sheet did not constitute reversible error, as defense counsel was shown the verdict sheet before it was submitted to the jury and initialed it without voicing any objection and, therefore, his consent is implied (see People v Allen, 149 AD3d 764, 766; People v Bjork, 105 AD3d 1258, 1264).
The defendant's contention that his sentence as a second felony offender was unconstitutional in light of Erlinger v United States (602 US 821) and Apprendi v New Jersey (530 US 466) is unpreserved for appellate review (see People v Rosen, 96 NY2d 329; People v Munoz, 237 AD3d 1110, 1111), and we decline to review it in the exercise of our interest of justice jurisdiction (see People v Glover, 247 AD3d 789, 790; People v Munoz, 237 AD3d at 1111).
2
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). The defendant's remaining contentions are without merit. CONNOLLY, J.P., DOWLING, GOLIA and MCCORMACK, JJ., concur.
ENTER:
Darrell M. Joseph Clerk of the Court
3