Opinion
February 2, 1987
Appeal from the Supreme Court, Queens County (Agresta, J.).
Ordered that the judgment is affirmed.
The defendant's principal contention is that he invoked the right to counsel at the start of a videotaped interview by an Assistant District Attorney, and that any statement made thereafter without counsel present should have been suppressed (see, People v. Skinner, 52 N.Y.2d 24; People v. Cunningham, 49 N.Y.2d 203). However, the defendant's comment about calling a lawyer, in the context given, was not an assertion of a desire not to respond to questions without counsel and "at most manifested a desire to consult with an attorney" (People v Johnson, 79 A.D.2d 201, 204 [Callahan, J., dissenting], revd 55 N.Y.2d 931, on dissenting opn at App. Div.). The right to counsel does not attach absent an unequivocal assertion (People v Johnson, 55 N.Y.2d 931, supra; People v. Hartley, 103 A.D.2d 935, affd 65 N.Y.2d 703). The Assistant District Attorney properly made further inquiry following the defendant's statement by ascertaining if the defendant wished to invoke his right to counsel. He repeated that the defendant had a right to an attorney before he spoke and asked again if the defendant wanted to talk even though an attorney was not present. The defendant's responses clarified the defendant's prior comment and ensured that he had not invoked the right to counsel and the statement he thereafter made was properly admitted in evidence.
The defendant also claims that he was prejudiced by the admission at trial of a confession by his codefendant Blount (see, Bruton v. United States, 391 U.S. 123). However, Blount took the stand and testified in his own behalf. Where a codefendant testifies even "if only to denounce the confessions", then he is available to be cross-examined by the defendant and the right of confrontation is not violated (Nelson v. O'Neil, 402 U.S. 622, 629-630; People v. Payne, 35 N.Y.2d 22; People v. Ragonesi, 63 A.D.2d 741, 742; People v. Ortiz, 32 A.D.2d 747, affd 27 N.Y.2d 696). Furthermore, we note that the confessions were interlocking.
We have examined the defendant's remaining contentions and have found them to be without merit. Mollen, P.J., Bracken, Brown and Spatt, JJ., concur.