Opinion
February 14, 1989
Appeal from the Supreme Court, Kings County (Goldberg, J.).
Ordered that the judgment is affirmed.
The defendant was convicted of murder based on the excited utterances of the victim which named the defendant and an unapprehended person as his killers. The record reveals that when the interrogating police officers and an Assistant District Attorney took the defendant's videotaped statement, they did not have actual knowledge that the defendant had an unrelated pending case on which he had legal counsel. Moreover, under the circumstances, we cannot ascribe constructive notice of the defendant's legal representation to the interrogating officers. Without actual or constructive knowledge, law enforcement officers are under no obligation to inquire whether the defendant has an attorney. Therefore, the defendant's videotaped statement was properly admitted into evidence (see, People v Bertolo, 65 N.Y.2d 111, 118-119; People v Green, 138 A.D.2d 516, 518; People v Woolard, 124 A.D.2d 763, 764, lv denied 69 N.Y.2d 751).
The defendant also argues that the jury verdict finding him guilty of murder in the second degree was against the weight of the evidence. Upon the exercise of our factual review power (CPL 470.15), we find that the weight of the evidence adduced at trial clearly establishes that the defendant and another, unapprehended person killed the victim. Bracken, J.P., Lawrence, Kunzeman and Kooper, JJ., concur.