Opinion
February 22, 1994
Appeal from the County Court, Nassau County (Mackston, J.).
Ordered that the judgment is affirmed.
The defendant killed two small children and seriously injured his former girlfriend when he set their home ablaze with gasoline.
Contrary to the defendant's assertions on appeal, he was not in custody when initially questioned by the police (see, People v. Centano, 76 N.Y.2d 837; People v. Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851). Therefore, the evidence acquired during this time was not obtained in violation of his Miranda rights (see, People v. Centano, supra; People v. Glasper, 160 A.D.2d 723). Moreover, even if the defendant had met his burden of showing that he was represented by counsel on another unrelated matter (see, People v. Rosa, 65 N.Y.2d 380; People v. Glover, 139 A.D.2d 530), his argument that this evidence was acquired in violation of his right to counsel would also fail. A defendant may now waive his right to counsel on a charge unrelated to a charge upon which he is actually represented, even without counsel being present (see, People v. Bing, 76 N.Y.2d 331). Further, there are no facts on the record which would indicate that the defendant's consent to search certain personal property was involuntarily given (see, People v. Anderson, 42 N.Y.2d 35; People v. Glasper, supra).
In addition, as the police had ample probable cause to arrest the defendant, the identification of the defendant by three witnesses was not the product of an illegal arrest (see, People v. Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833; People v Rodriquez, 64 N.Y.2d 738; People v. Javier, 175 A.D.2d 182; People v. Grams, 166 A.D.2d 717). We note that the photographic identification of the defendant occurred prior to his arrest and, therefore, could not have been a product of that arrest.
The trial court did not improvidently exercise its discretion when it denied the defendant's postverdict motion pursuant to CPL 330.30 without a hearing (see, People v. Friedgood, 58 N.Y.2d 467; People v. Simon, 178 A.D.2d 447; People v. Bellamy, 158 A.D.2d 525; People v. Fusillo, 94 A.D.2d 802).
We have considered the defendant's remaining contentions and find them to be without merit. Miller, J.P., O'Brien, Ritter and Krausman, JJ., concur.