Opinion
May 20, 1985
Appeal from the County Court, Suffolk County (Cacciabaudo, J.).
Judgment affirmed.
On the instant appeal, defendant argues, inter alia, that (1) one of the arresting officers physically abused him and (2) his testimony at the suppression hearing on this issue warranted a finding by the County Court that his two written confessions, which he subsequently made to a detective, were involuntary as a matter of law.
We disagree.
Initially, it must be noted that defendant's claim of police brutality was contradicted by the testimony of the interrogating detective and the other arresting officer that defendant appeared to be in good condition prior to his interrogation except for a hand injury. Moreover, it is clear that it was not the interrogating detective who defendant claims abused him. In this regard, it has been held that a confession may be voluntary even though at some prior time, while in custody, an arrestee was subjected to unnecessary force ( see, People v. Borowsky, 258 N.Y. 371; People v. Langert, 44 Misc.2d 399, affd 25 A.D.2d 952, affd 21 N.Y.2d 890). Under the circumstances, the voluntariness of defendant's confessions presented an issue of credibility, and the County Court's determination on that issue, which has support in the record, should not be disturbed on appeal ( People v. Gee, 104 A.D.2d 561; People v. McMillian, 56 A.D.2d 662).
Defendant also argues that his confessions should have been suppressed pursuant to the holding of the Court of Appeals in People v. Bartolomeo ( 53 N.Y.2d 225) since, at the time of his interrogation, he was represented by counsel on a pending unrelated charge.
We disagree. The record amply supports the finding of the County Court that the detective who interrogated the defendant did not have actual knowledge of defendant's arrest on an unrelated charge at the time of the instant interrogation. Moreover, the record indicates that the interrogating detective specifically asked defendant "if he had a lawyer" and defendant answered "No". Under these circumstances, defendant's argument must be rejected ( see, People v. Lucarano, 61 N.Y.2d 138; People v. Bartolomeo, supra; People v. Smith, 54 N.Y.2d 954; People v Fuschino, 59 N.Y.2d 91; People v. Beverley, 104 A.D.2d 996).
We have examined defendant's remaining arguments and find them to be without merit. Mangano, J.P., Gibbons, Bracken and Niehoff, JJ., concur.