Opinion
December 14, 1987
Appeal from the Supreme Court, Kings County (Demakos, J.).
Ordered that the judgments are affirmed.
For the first time on appeal, the defendant maintains that his inculpatory statement, elicited by an interrogating police officer, was obtained in violation of his right to counsel (see, People v Bartolomeo, 53 N.Y.2d 225). Employing this contention as a predicate, the defendant further contends that he was deprived of the effective assistance of counsel because, at his Huntley hearing, his attorney failed to "adequately develop the issues" in support of the Bartolomeo claim (see, People v Bartolomeo, supra). There is nothing, however, in the record establishing that the defendant had, in fact, been represented by an attorney at the time he made the inculpatory statement or that any other criminal action was pending against him (see, People v Rosa, 65 N.Y.2d 380; People v Kinchen, 60 N.Y.2d 772; People v Ryans, 118 A.D.2d 741). Accordingly, we cannot, on this record, conclude that counsel failed to provide effective representation to the defendant. As we have previously held, the appropriate vehicle by which to obtain review of the defendant's claim of ineffective assistance of counsel is through the commencement of a proceeding pursuant to CPL article 440 (see, People v Jones, 114 A.D.2d 974, lv denied 67 N.Y.2d 653; People v Harris, 109 A.D.2d 351, 360, lv denied 66 N.Y.2d 919; cf., People v Donovon, 107 A.D.2d 433, 443-444).
Further, we discern no basis for disturbing the hearing court's determination that the defendant was apprised of, and thereafter voluntarily and knowingly waived his constitutional rights prior to making his statement to the investigating officer (see, People v Prochilo, 41 N.Y.2d 759, 761; People v Newson, 68 A.D.2d 377, 387).
We have reviewed the defendant's remaining contentions and find them to be either unpreserved for appellate review or lacking in merit. Brown, J.P., Weinstein, Kooper and Sullivan, JJ., concur.