Opinion
July 10, 1989
Appeal from the Supreme Court, Queens County (Eiber, J.).
Ordered that the judgment is affirmed.
We agree with the hearing court that the defendant's statements following his arrest were voluntarily made and, therefore, admissible even though the defendant was represented by counsel on a pending unrelated charge.
It is well settled that "[k]nowledge that one in custody is represented by counsel, albeit on a separate, unrelated charge, precludes interrogation in the absence of counsel and renders ineffective any purported waiver of the assistance of counsel when such waiver occurs out of the presence of the attorney" (People v Bartolomeo, 53 N.Y.2d 225, 231; People v Rogers, 48 N.Y.2d 167).
However, in the instant case, no police interrogation occurred so that the defendant's right to counsel was not violated (see, People v Sobolof, 109 A.D.2d 903, 904). Rather, the defendant asked to speak with Agent Sweeney and, without any inducement or encouragement, confessed to the murders. Volunteered statements are admissible provided that the defendant speaks with genuine spontaneity and not as a result of "`inducement, provocation, encouragement or acquiescence, no matter how subtly employed'" (People v Sobolof, supra, at 904-905, quoting People v Maerling, 46 N.Y.2d 289, 302-303). The defendant's mere presence among police officers, who were performing routine police functions, does not lead to the inexorable conclusion that his will was thereby overborne.
Given the defendant's criminal history and the gravity of the offense we find that the sentence imposed was neither harsh nor excessive (see, People v Suitte, 90 A.D.2d 80).
We have reviewed the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Kunzeman, J.P., Kooper, Harwood and Rosenblatt, JJ., concur.