Opinion
February 14, 1989
Appeal from the Supreme Court, Kings County (Beldock, J.).
Ordered that the judgment is affirmed.
The defendant challenges the hearing court's denial of that branch of his omnibus motion which was to suppress his videotaped confession. The defendant contends that the People, by failing to call the arresting detective who, according to the defendant's testimony at the hearing, threatened and coerced him into giving his videotaped statement, did not establish that his confession was voluntary.
While it is the People's burden to establish beyond a reasonable doubt that the defendant's statements were voluntarily made (see, People v Anderson, 42 N.Y.2d 35; People v Valerius, 31 N.Y.2d 51), "[t]his does not mean * * * that the People are mandated to produce all police officers who had contact with the defendant from arrest to the time the challenged statements were elicited" (People v Witherspoon, 66 N.Y.2d 973, 974; see, People v Anderson, 69 N.Y.2d 651; People v Leftwich, 134 A.D.2d 371, lv denied 70 N.Y.2d 957). Thus, where the prosecution in the first instance establishes the legality of police conduct and the defendant's waiver of his rights, the burden of persuasion on a motion to suppress rests with the defendant (People v Love, 85 A.D.2d 799, affd 57 N.Y.2d 998; see, People v Wilson, 143 A.D.2d 786; People v Leftwich, supra).
We find that the defendant's allegations were refuted by the videotape itself which confirms the court's finding that the defendant, appearing relaxed, unhandcuffed and while smoking a cigarette, voluntarily admitted his commission of the robbery. Moreover, the defendant's own credibility was impeached at the hearing by his testimony that he had never previously been in "trouble" when, in fact, he had served a year in jail upon a felony conviction and the fact that he never complained of the purported threats and coercive methods.
Accordingly, the hearing court properly denied the motion to suppress the videotaped confession. Thompson, J.P., Rubin, Spatt and Balletta, JJ., concur.