Opinion
November 16, 1987
Appeal from the County Court, Orange County (Hickman, J.).
Ordered that the judgments are affirmed.
The defendant did not raise the specific issue of the legality of his arrest as a basis for the exclusion of his confessions within the context of his omnibus motion or at any time prior to judgment. Thus, the defendant failed to preserve that issue for appellate review (see, People v. Martin, 65 A.D.2d 678, affd 50 N.Y.2d 1029; People v. Williams, 118 A.D.2d 610, lv denied 67 N.Y.2d 1058). Nor does the interest of justice compel a reversal on the record before us, which discloses that the warrantless arrest of the defendant was proper since both the defendant and the person in whose name the apartment was leased knowingly and voluntarily consented to the arresting officers' entry into the apartment (see, Payton v. New York, 445 U.S. 573, 577; People v. Jones, 130 A.D.2d 511; People v. Hixon, 130 A.D.2d 508, lv denied 70 N.Y.2d 648).
In addition, that branch of the defendant's omnibus motion which was to suppress tangible evidence was properly denied, without a hearing, but with leave to renew, since the motion papers failed to set forth any factual allegations supporting the legal basis for suppression as required by CPL 710.60 (1) or (3) (a) (see, People v. Stevens, 129 A.D.2d 749). Furthermore, the defendant waived any objection to the introduction of the evidence seized from the apartment when the defense counsel indicated, in response to the hearing court's inquiry, that he was not renewing this application (see, People v. Bertolo, 65 N.Y.2d 111). The defendant also failed to state the legal and factual basis for the objection he made at the time the items were being admitted into evidence at the trial, confirming his waiver of his right to a judicial determination of whether the consent to search the apartment was voluntary (CPL 710.70; see, People v. Minori, 51 N.Y.2d 930). Furthermore, the uncontroverted testimony clearly indicates that the evidence was seized as a result of a consensual search.
Finally, since the defendant failed to raise an objection to the court's expressed intention not to marshal the evidence, the alleged error has not been preserved for appellate review as a matter of law (see, People v. Patterson, 121 A.D.2d 406, lv denied 68 N.Y.2d 759). In any event, any error in this respect was harmless since the jury obviously scrutinized the evidence closely as indicated by its finding the defendant not guilty on three counts. Mollen, P.J., Brown, Rubin and Spatt, JJ., concur.