People v. Bailey , 562 N.Y.S.2d 296 ( 1990 )

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: On appeal from his convictions for, inter alia, intentional and felony murder, defendant claims that the suppression court erred in not suppressing his oral and written confessions made to police officers. The suppression court found that defendant was not in custody when he made oral admissions without the benefit of Miranda warnings (see, Miranda v Arizona, 384 US 436). The resolution of factual issues by the suppression court should be honored unless unsupported as a matter of law (see, People v Yukl, 25 NY2d 585, 588, cert denied 400 US 851). Upon our review of the suppression hearing testimony, we conclude that the suppression court’s determination that defendant was not in custody is supported by the evidence and should not be disturbed.

Defendant’s sentence must be modified only to the extent that the sentence imposed on the robbery conviction must run concurrently with that imposed on the conviction for felony murder. We conclude, however, that it was within the court’s discretion to impose the sentence on the robbery conviction consecutively to the sentence on defendant’s conviction for intentional murder (see, People v Adams, 163 AD2d 881).

We have examined the remaining issues raised by defendant and find them to be lacking in merit. (Appeal from judgment of Supreme Court, Erie County, Kasler, J.—murder, second degree.) Present—Doerr, J. P., Boomer, Pine, Lawton and Davis, JJ.