Opinion
September 21, 1995
Appeal from the Supreme Court, New York County (Dorothy Cropper, J.).
Defendant argues that the trial court delivered an improper charge relating to the voluntariness of his confession and that his right to a fair trial was violated by the prosecutor's cross-examination and comments that he made during summation. However, defendant neither raised any objection at trial to the instruction that he now deems unacceptable nor to the prosecutor's cross-examination and summation, thus rendering unpreserved his current complaints (CPL 470.05; People v Reddick, 199 A.D.2d 175, lv denied 83 N.Y.2d 857). Were we to reach these issues in the interest of justice, we would find them to be without merit.
The court's voluntariness charge was in accordance with New York law, and indeed directly tracked the language of CPL 60.45 (2) (b) (i). The United States Supreme Court has, in Crane v Kentucky ( 476 U.S. 683, 688-689), distinguished between the situation of a Judge making a factual determination as to the voluntariness of a confession and a jury undertaking the same function. The court herein made a pretrial finding that the subject confession was not involuntary, and defendant does not challenge that ruling. In the absence of a constitutional right to have a jury again pass upon such issue, defendant was not deprived of any constitutional right by virtue of the Trial Judge's instruction.
The prosecutor did not exceed the limits of the court's Sandoval ruling, nor did his summation deprive defendant of a fair trial, particularly in view of the overwhelming evidence of his guilt ( see, People v Brosnan, 32 N.Y.2d 254, 261-262).
Concur — Wallach, J.P., Kupferman, Ross, Nardelli and Tom, JJ.