Opinion
February 21, 1986
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Doerr, J.P., Denman, Green, O'Donnell and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's inculpatory statement to his brother in the presence of a police officer was attenuated from his two earlier sworn statements which were suppressed because they were obtained outside the presence of counsel (see, People v. Peoples, 80 A.D.2d 722). His statement under review was voluntary, defendant was clearly aware of the presence of the police officer, and the statement was neither the result of renewed police interrogation following the suppressed earlier statements nor the product of a single continuous chain of events. There was no evidence of surreptitious or devious behavior on the part of the police, no police "agent" was involved, and the statement was clearly probative. Further, the error in the trial court's charge did not deprive the defendant of a fair trial or contribute to his conviction; it was not preserved for review and we decline to exercise our discretion and reverse the conviction in "the interest of justice" (CPL 470.15 [c]). Finally, the evidence was legally sufficient to support the jury verdict.