Opinion
April 4, 1988
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is affirmed.
The defendant's conviction arose out of the armed robbery of a beer distributor's store in Queens County on January 15, 1981, which resulted in the shooting death of one John Knipper, an owner of the store. On appeal, the defendant, inter alia, challenges the hearing court's ruling which denied those branches of his omnibus motion which were to suppress the lineup identification testimony of certain prosecution witnesses as well as his confession to an Assistant District Attorney following his arrest.
Based upon a review of the record, including the photographs of the defendant's lineup, we find that the facts adduced at the hearing clearly demonstrate that the lineup was not impermissibly suggestive (see, Stovall v. Denno, 388 U.S. 293). There is an absence of any evidence that the police influenced the witnesses in selecting the defendant. Moreover, the fillers in the defendant's lineup possessed physical characteristics reasonably similar to those of the defendant (see, People v. Burwell, 26 N.Y.2d 331; People v. Wong, 133 A.D.2d 184, lv denied 70 N.Y.2d 878). Thus, the branch of the defendant's omnibus motion which was to suppress the witnesses' lineup identification testimony was properly denied.
Similarly, we find no error in the hearing court's denial of that branch of the defendant's omnibus motion which was to suppress his postarrest statement made to an Assistant District Attorney. The hearing testimony established that the defendant, along with codefendants John Baity and Clifton Jefferson, were arrested at approximately 9:00 P.M. in Brooklyn on the evening of the robbery. The three men were then transported to a local Brooklyn precinct to await transport to Queens. At that time, each of the men were administered Miranda warnings; however, none of them wished to make a statement. Thereafter, they were transported to the 102nd Precinct in Queens where they arrived at approximately 10:00 P.M. The defendant was again administered his Miranda rights at the 102nd Precinct.
Sometime following his arrival at the precinct and after being readvised of his Miranda rights, Baity gave a statement to the police which implicated the defendant in the crime. At approximately 2:00 A.M., an Assistant District Attorney, in the presence of two detectives, spoke with the defendant who then indicated that he was unsure whether to make a statement. The Assistant District Attorney suggested that, before the defendant made up his mind, he should speak with Baity and Jefferson. The defendant was also informed that Baity had already made a statement. The defendant was then permitted to step outside into the hallway and when he returned approximately five minutes later, he agreed to make a statement. After being given Miranda warnings for a third time, the defendant made a statement which neither inculpated himself nor Baity or Jefferson in the robbery and shooting. At that point in the interview, the Assistant District Attorney refused to continue questioning the defendant based on his expressed belief that the defendant was not telling the truth. In response, the defendant gave another statement detailing his involvement in the crime.
Contrary to the defendant's position, there is no basis in the record to support the conclusion that his statement was coerced or otherwise taken in violation of his Miranda rights. After the defendant was administered his Miranda warnings at the Brooklyn precinct and again at his arrival in Queens, the police officers "scrupulously honored" his decision not to make a statement (see, Miranda v. Arizona, 384 U.S. 436, 479; People v Wander, 47 N.Y.2d 724). The Assistant District Attorney's subsequent interview of the defendant, several hours later, in which he inquired into the defendant's desire to make a statement did not, as the defendant argues, constitute interrogation or questioning which was likely to elicit an incriminating response. Thus, the defendant's right to cut off questioning was not violated (cf., People v. Ferro, 63 N.Y.2d 316, cert denied 472 U.S. 1007). Additionally, the Assistant District Attorney's refusal to continue questioning the defendant, after he was readvised of his Miranda rights and expressly waived those rights, unless the defendant told the truth, did not constitute a pattern of unrelenting coercive tactics designed to elicit a statement from the defendant (see, People v. Diaz, 77 A.D.2d 523, affd 54 N.Y.2d 967, cert denied 455 U.S. 957; People v. Tarsia, 50 N.Y.2d 1; People v. Madison, 135 A.D.2d 655; People v. Gagne, 129 A.D.2d 808, lv denied 70 N.Y.2d 704; cf., People v. Pugh, 70 A.D.2d 664). Finally on this point we note that the defendant never expressly or otherwise invoked his right to counsel prior to the questioning by the Assistant District Attorney. Accordingly, the defendant's waiver of his Miranda rights was valid (cf., People v. Esposito, 68 N.Y.2d 961; People v. Lucas, 53 N.Y.2d 678, rearg denied 54 N.Y.2d 642; People v. Jacome, 123 A.D.2d 358, lv denied 69 N.Y.2d 881).
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient. Further, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
Parenthetically we note that the defendant did not raise a Bruton claim (Bruton v. United States, 391 U.S. 123) on appeal based on the fact that he was jointly tried with his two codefendants and the codefendants' confessions were admitted into evidence. We conclude, however, that even if it had been raised, the claim would not have been cognizable because it was not preserved for appellate review by an objection to the admission of this testimony during trial or by a motion by the defendant for a severance prior to trial (see, People v. Green, 138 A.D.2d 516).
Finally, contrary to the defendant's position, the sentence imposed was neither harsh nor excessive under the circumstances of this case. Mollen, P.J., Kunzeman, Eiber and Spatt, JJ., concur.