Opinion
February 2, 1990
Appeal from the Monroe County Court, Marks, J.
Present — Dillon, P.J., Denman, Green, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's motion to suppress statements made to the police in the absence of Miranda warnings was properly denied. With respect to the prearrest statement, defendant and his father voluntarily went to the police station in their own vehicle. The officer asked defendant's father for permission to question defendant and defendant's father consented. Questioning stopped when defendant's father stated that he and defendant were tired and wanted to go home. Thus defendant was not restrained in any way and in fact was free to leave (see, People v Yukl, 25 N.Y.2d 585, 589; People v Stebbins, 152 A.D.2d 946; People v Flint, 151 A.D.2d 964). After defendant's father indicated that he was going to retain an attorney for defendant, the police did not direct any questions to defendant, but asked defendant's father if defendant would take a polygraph test. There was thus no custodial questioning of defendant and no response was elicited from him.
With respect to the postarrest statements, the statements made by defendant during the booking procedure were not preceded by Miranda warnings but neither were they the result of interrogation or its functional equivalent. Defendant made his incriminating admission spontaneously in response to the officer's inquiry whether he was going to be sick (see, People v Lynes, 49 N.Y.2d 286, 294-295).
Defendant further contends that it was error for the court to admit four photographs over defendant's objection on grounds of relevance. The determination whether evidence is relevant is entrusted to the discretion of the trial court (see, People v Davis, 43 N.Y.2d 17, 27, cert denied 435 U.S. 998). Even gruesome photographs of a homicide scene are admissible if they tend to prove or disprove a disputed or material issue, illustrate other relevant evidence, or corroborate or disprove some other evidence (see, People v Pobliner, 32 N.Y.2d 356, 369-370, cert denied 416 U.S. 905). Here, the closeup shots of slug fragments and wadding were properly admitted as probative of the ballistics evidence and their probative value outweighed their potential for prejudice. With respect to exhibit 8, the photograph was probative because it corroborated the testimony of defendant's friend with respect to defendant's description of the shooting (see, People v Pobliner, supra, at 361, 369-370). Even if the court erred in admitting exhibit 8, such error is harmless. A number of witnesses gave graphic testimony about the crime scene so that the photograph was merely cumulative of that testimony (see, People v Bell, 63 N.Y.2d 796, 797). Moreover, the remainder of the evidence against defendant was overwhelming and there is no significant probability that the jury would have acquitted defendant without the photographic evidence (see, People v Crimmins, 36 N.Y.2d 230, 242).