Opinion
May 22, 1989
Appeal from the County Court, Rockland County (Meehan, J.).
Ordered that the judgment is affirmed, and the matter is remitted to the County Court, Rockland County, for further proceedings pursuant to CPL 460.50 (5).
Contrary to the defendant's contentions, the inculpatory statements elicited during a prearraignment interrogation were not violative of his indelible right to counsel. At the time the statements were elicited, there had neither occurred the commencement of formal judicial proceedings nor any other significant judicial activity which could be construed as implicating the defendant's indelible right to counsel (see, People v Avery, 129 A.D.2d 852, 854, lv denied 70 N.Y.2d 642; People v Medvecky, 95 A.D.2d 921, 922; see also, People v Wilson, 56 N.Y.2d 692; People v Samuels, 49 N.Y.2d 218). Moreover, there is no evidence that the 10 hours which ensued between the defendant's arrest and his arraignment was for the primary purpose of avoiding the effect of the Samuels rule, as the defendant contends (see, People v Williams, 120 A.D.2d 630, 631, lv denied 68 N.Y.2d 761). In any event, even if the delay could be construed as improper, "unwarranted delay in arraignment is but one of the many pertinent factors bearing on the question of the voluntariness and, therefore, admissibility of a defendant's inculpatory statements" (see, People v Dairsaw, 46 N.Y.2d 739, 740, cert denied 440 U.S. 985; People v Hopkins, 58 N.Y.2d 1079; People v Holland, 48 N.Y.2d 861; People v Norris, 122 A.D.2d 82, 83, lv denied 68 N.Y.2d 916). In short, the record provides no support for the defendant's contention that the police obtained his statements in violation of his right to counsel.
The defendant further argues that the court erred in charging the jury that the "evidence need not establish with certainty the exact date of the alleged offense" provided that it establishes "beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged in the indictment". We disagree. Since time was not a material element of the crime charged, the court's instruction was proper (see, People v Drake, 61 N.Y.2d 359, 363; cf., People v Grega, 72 N.Y.2d 489; People v Feldman, 50 N.Y.2d 500, 504; People v La Marca, 3 N.Y.2d 452, cert denied 355 U.S. 920).
We have reviewed the defendant's remaining contentions and find them to be without merit. Lawrence, J.P., Kunzeman, Rubin and Kooper, JJ., concur.