
    The People of the State of New York, Respondent, v Antonio Martinez, Appellant.
    [699 NYS2d 885]
   —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered February 5, 1998, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Starkey, J.), of that branch of the defendant’s omnibus motion which was to suppress statements made by him to law enforcement officials.

Ordered that the judgment is affirmed.

The defendant’s claim that his statements should have been suppressed because he was arrested in his home without a warrant (see, Payton v New York, 445 US 573), is unpreserved for appellate review (see, CPL 470.05 [2]; People v Morales, 250 AD2d 782). In any event, his claim is without merit because a reasonable person, innocent of any crime, would not have believed that he or she was in police custody (see, People v Yukl, 25 NY2d 585, cert denied 400 US 851), and the hearing court properly found that the defendant was not forcibly removed from his home for questioning (see, People v Carrier, 248 AD2d 628). Although the defendant also contends that his statements were obtained in violation of his Miranda rights (see, Miranda v Arizona, 384 US 436), the record supports the hearing court’s finding that the defendant’s statements were voluntarily made after he knowingly and intelligently waived his rights (see, People v Prochilo, 41 NY2d 759; People v Levine, 174 AD2d 757).

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt and that the defendant failed to sustain his burden of establishing, by a preponderance of the evidence, the applicability of the affirmative defense contained in Penal Law § 125.25 (3) (see, People v Jackson, 208 AD2d 862).

The defendant’s remaining contentions are without merit. Santucci, J. P., Joy, Florio and Luciano, JJ., concur.  