Opinion
November 15, 1995
Appeal from the Monroe County Court, Bristol, J.
Present — Green, J.P., Pine, Wesley, Balio and Boehm, JJ.)
Judgment unanimously affirmed. Memorandum: Defendant argues for the first time on appeal that suppression of his statement to the police is required because it was obtained in violation of his right to counsel. He argues that there was a three-week delay between the decision to arrest defendant and the date of his warrantless arrest and that "the only conceivable reason" for the decision not to obtain an arrest warrant was to deprive defendant of his right to counsel, thereby enabling the police to obtain a statement from him in the absence of counsel. "The constitutional right to counsel is fundamental and its denial may, therefore, be raised for the first time on appeal" (People v Banks, 53 N.Y.2d 819, 821). There is, however, no constitutional right to be arrested (Hoffa v United States, 385 U.S. 293; People v Keller, 148 A.D.2d 958, 960, lv denied 73 N.Y.2d 1017), and there is no requirement that the police obtain an arrest warrant when, as here, defendant is arrested outside his home (cf., Payton v New York, 445 U.S. 573; People v Harris, 77 N.Y.2d 434). Thus, even assuming, arguendo, that the police deliberately failed to obtain an arrest warrant before speaking to defendant in order to avoid the attachment of defendant's right to counsel, that failure would not require suppression of defendant's statement (see, People v Caviano, 194 A.D.2d 429, 431, lv denied 82 N.Y.2d 892; see also, People v Counts, 214 A.D.2d 897).
Defendant's reliance on People v Cooper ( 101 A.D.2d 1) and People v Edgerton ( 115 A.D.2d 257, lv denied 67 N.Y.2d 882) is misplaced; those cases involve delay between arrest and arraignment, while in this case defendant argues that there was pre-arrest delay. His reliance on People v Harris (supra) also is misplaced; that case involved a statement made following a Payton violation (see also, People v Tondryk, 176 A.D.2d 1194, lv denied 79 N.Y.2d 833; People v Keller, supra, at 960).