Opinion
Argued March 17, 1980
Decided April 29, 1980
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, ANDREW G. CELLI, J.
Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellant.
Lawrence T. Kurlander, District Attorney (Kenneth R. Fisher of counsel), for respondent.
MEMORANDUM.
The order appealed from should be affirmed. Our examination of the record shows that defendant's motion to suppress the gun was not premised upon the failure to provide warnings in accordance with the mandate of Miranda v Arizona ( 384 U.S. 436). This argument is not one which constitutes a question of law reviewable in this court despite the failure to timely raise the issue (compare People v Tutt, 38 N.Y.2d 1011, with People v Michael, 48 N.Y.2d 1). Hence, defendant's failure to preserve this issue for review precludes his reliance upon it upon this appeal and prevents our consideration of the merits of his argument with respect to the alleged illegality of the seizure of the gun and its effect upon the subsequent statement.
As to defendant's claim that the court erred in not granting his motion for a mistrial when it became evident that one of the witnesses for the prosecution could not be subjected to intensive cross-examination because of her physical condition, we conclude that the court's instruction to the jury to disregard her testimony altogether sufficed in the circumstances of this case to avoid any violation of defendant's right of confrontation.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.