Opinion
May 28, 1985
Appeal from the Supreme Court, Kings County (Shaw, J.).
Judgment affirmed.
Although the defendant may raise a right to counsel claim pursuant to People v. Bartolomeo ( 53 N.Y.2d 225) for the first time on appeal, despite his failure, as in the case at bar, to assert such a claim at the suppression hearing ( see, e.g., People v. Cullen, 50 N.Y.2d 168; People v. Samuels, 49 N.Y.2d 218; People v. Donovon, 107 A.D.2d 433), a sufficient factual record must be developed in order for such a claim to be reviewed on appeal. The defendant cannot succeed on his Bartolomeo claim if the record before the appellate court fails to disclose facts sufficient to establish a deprivation of his right to counsel ( see, People v. Kinchen, 60 N.Y.2d 772; People v. Donovon, supra). On this record, there is no evidence whatsoever that the law enforcement officials who took statements from defendant after he waived his rights had knowledge of his recent prior arrest in Kings County. Moreover, defendant was not deprived of his right to counsel during questioning since the police were under no duty to make any further inquiry as to whether defendant was represented by counsel merely because he had prior involvements with the criminal justice system ( see, e.g., People v. Sepe, 108 A.D.2d 941; People v. Lucarano, 61 N.Y.2d 138, 145-146; People v. Servidio, 54 N.Y.2d 951; People v. Beverly, 104 A.D.2d 996; People v. Bertolo, 102 A.D.2d 193, 216 [Niehoff, J., concurring], affd 65 N.Y.2d 111; People v. Brownlee, 119 Misc.2d 996, 999). Therefore, defendant has failed to make a factual showing sufficient for appellate review of his right to counsel claim.
The identification testimony of the complaining witness was not tainted by any suggestive identification procedures; in any event, because the complaining witness was able to see defendant's face for a 10-second period before she entered the elevator in which she was eventually raped, she thus had an independent basis for making her identification ( see, e.g., People v. Ballott, 20 N.Y.2d 600; People v. Coleman, 98 A.D.2d 942). In addition, the trial court did not abuse its discretion in granting in part and denying in part defendant's Sandoval motion ( People v Sandoval, 34 N.Y.2d 371; see, People v. Pavao, 59 N.Y.2d 282, 292; People v. McClain, 107 A.D.2d 765). Although the trial court improperly used the words "moral certainty" in explaining the concept of reasonable doubt to the jury, since no exception was taken to that portion of the charge and the charge, viewed in its entirety, adequately explained the concept of reasonable doubt to the jury, a reversal of defendant's conviction is not mandated ( see, People v. Dee, 106 A.D.2d 582; People v. Ortiz, 92 A.D.2d 595). Defendant's claims that the videotape which was played to the jury should have been redacted to delete a question asked of him by an Assistant District Attorney and defendant's answer to the question, and that the prosecutrix's summation was improper and prejudicial have been considered and are without merit. Thompson, J.P., Brown, Niehoff and Lawrence, JJ., concur.