Opinion
November 21, 1990
Appeal from the County Court of Chemung County (Castellino, J.).
In a written confession, defendant stated that John Ludwig made a homosexual advance toward him, as a result of which he "snapped" and repeatedly struck Ludwig over the head with a soda bottle, causing his death. Convicted after trial of murder in the second degree, defendant appeals.
Defendant first asserts that County Court erred in denying the motion to suppress his oral and written statements. We disagree. The record amply supports County Court's determination that the investigating police officers' agreement to assist defendant in obtaining psychiatric help did not render the subsequent confession involuntary. We find no evidence suggesting that defendant was so vulnerable or susceptible to the promise that he would be likely to make a false incriminating statement (CPL 60.45 [b] [i]; see, People v. Taber, 115 A.D.2d 126, 127, lv. denied 67 N.Y.2d 657), particularly in view of the fact that defendant himself sought the assurances at a time when he had already begun to incriminate himself. Here, the police conduct fell far short of "deception * * * so fundamentally unfair as to deny due process" (People v. Tarsia, 50 N.Y.2d 1, 11; see, People v. Vaughn, 134 A.D.2d 789, 790). Equally meritless is the contention that the police continued to question defendant after he expressed a desire to remain silent (see, Michigan v. Mosley, 423 U.S. 96; People v. Ferro, 63 N.Y.2d 316, 322, cert. denied 472 U.S. 1007; People v. Grant, 45 N.Y.2d 366, 373, 376). The record of the Huntley hearing makes it clear that defendant asserted nothing more than a right to avoid certain areas of inquiry, including questions about his car and his parents (see, Michigan v. Mosley, supra, at 103-104), and freely and voluntarily responded to other inquiries.
We also reject the assertion that County Court erred in denying defendant's motion to prohibit the People from questioning him concerning a prior conviction for attempted murder. The fact that a prior crime is similar to that charged does not of itself preclude its use for impeachment purposes (see, People v. Pavao, 59 N.Y.2d 282, 292). Here, County Court balanced the necessary competing factors and adopted a reasonable "Sandoval compromise" by permitting questioning as to the fact of the prior conviction without inquiry concerning the underlying occurrence (see, People v. Ashley, 145 A.D.2d 782; People v. Lawson, 112 A.D.2d 457, 461, lv. denied 66 N.Y.2d 764). Finally, County Court properly excluded photographs of nude men found in Ludwig's apartment, offered as evidence of nothing more than his sexual preference (see, People v. Gagnon, 150 A.D.2d 918, 919, affd. 75 N.Y.2d 736; People v. Martinez, 144 A.D.2d 699, 701, lv. denied 73 N.Y.2d 923).
Judgment affirmed. Mahoney, P.J., Casey, Weiss, Levine and Mercure, JJ., concur.