Opinion
June 24, 1991
Appeal from the County Court, Nassau County (Harrington, J.).
Ordered that the judgment is affirmed.
The defendant was solicited by his codefendant Jayne Stamen to kill her husband, who she claimed was physically abusing her. The defendant then recruited two of his friends, the codefendants Gregory Jackson and Harvey Catanzaro, to assist him in the murder. On the evening of November 10, 1986, they staged a "house robbery" of Stamen's East Meadow home, during the course of which the defendant repeatedly struck Stamen's husband in the head with a hammer causing his death. The defendant was arrested nine days later and made oral and written statements, including a confession, the suppression of which was later denied.
We agree with the hearing court that the delay between the defendant's arrest and arraignment was not calculated to deprive him of his indelible right to counsel and that it did not render his statements involuntary. It is well settled that "delay in arraignment, without more, does not cause [an] accused's critical stage right to counsel to attach automatically and, absent extraordinary circumstances, a delay in arraignment is but [a] factor to be considered in assessing the voluntariness of a confession" (People v Mosley, 135 A.D.2d 662, 663-664; see, People v Hopkins, 58 N.Y.2d 1079; People v Holland, 48 N.Y.2d 861; People v Dairsaw, 46 N.Y.2d 739, cert denied 440 U.S. 985).
While lengthy, the 37-hour delay was justified inasmuch as it was occasioned, in large part, by the defendant's assistance in helping the police to apprehend and identify his accomplices (see, People v Hopkins, supra; People v Quartieri, 171 A.D.2d 889; People v Barker, 168 A.D.2d 211; People v Smith, 161 A.D.2d 817, cert denied ___ US ___, 111 S Ct 996; People v Borazzo, 137 A.D.2d 96; People v Wilson, 133 A.D.2d 790). The record supports the hearing court's further finding that the defendant effectively waived his Miranda rights, willingly talked to the detectives without the presence of counsel, and voluntarily assisted in their ongoing investigation.
Moreover, while at the precinct, the defendant also executed a statement acknowledging that he had been cooperating with the investigation and that he had the right to be arraigned immediately but was willing to delay it for the express purpose of continuing to assist the police. At the suppression hearing, the defendant did not raise any issue concerning this statement. Accordingly, his present arguments in this regard are unpreserved for appellate review (see, CPL 470.05). In any event, contrary to the defendant's contentions, the execution of the agreement did not constitute any type of judicial activity so as to implicate his indelible right to counsel (see, People v Coleman, 43 N.Y.2d 222; People v Boardman, 150 A.D.2d 706) and there is no indication in the record that it was not voluntarily and intelligently made. Accordingly, we decline to disturb the hearing court's determination.
The defendant also contends that the trial court's answering of two oral questions posed by individual jurors in open court in the presence of the defendant and counsel, without giving prior notice of the content of the questions to defense counsel, deprived him of a fair trial. We disagree. While the proper procedure is generally for the jury to put its inquiries in writing and for the court to afford counsel an opportunity to be heard before a response is given (see, United States v Ronder, 639 F.2d 931; People v O'Rama, 78 N.Y.2d 270; People v Miller, 163 A.D.2d 491; People v Carballo, 158 A.D.2d 701), any error here was harmless. In responding to the oral inquiries, the court merely stated that the jury was not to concern itself with whether the defendant's accomplices were charged with any crime and reiterated its main charge on aiding and abetting. It is not disputed that these responses were substantively correct. Moreover, the evidence of the defendant's guilt, which included his own confession and the testimony of the codefendant Gregory Jackson, was overwhelming. Under these circumstances, a new trial is not warranted.
We have considered the defendant's remaining contentions and find them to be unpreserved for appellate review or without merit. Kooper, J.P., Sullivan, Lawrence and Rosenblatt, JJ., concur.