Opinion
July 6, 1995
Appeal from the Supreme Court, New York County (Edwin Torres, J.).
Accepting the hearing court's determinations of credibility ( People v. Fonte, 159 A.D.2d 346, lv denied 76 N.Y.2d 734), the record supports the hearing court's findings that the police were invited into defendant's residence by a person of requisite authority ( People v. Cosme, 48 N.Y.2d 286), and that defendant could not have reasonably believed he was under arrest when he agreed to accompany the officers to the precinct for an interview in connection with an ongoing investigation ( People v. Yukl, 25 N.Y.2d 585).
The trial court properly exercised its discretion in denying defendant's motion for a mistrial on the ground that a reference by a police witness to a codefendant's statement inculpating defendant resulted in undue prejudice to defendant ( see, Hall v Potoker, 49 N.Y.2d 501). Rather, any possible prejudice to defendant was obviated by the witness' explanation that the reference was merely an interview technique, and by the court's repeated instructions to the jury to draw no adverse inference against a defendant from evidence presented in connection with a codefendant, including alleged statements. Further, any error must be considered harmless beyond a reasonable doubt in light of the fact that defendant's own statements regarding his participation in the crimes charged were supported by an abundance of corroborating evidence, including the testimony of eyewitnesses regarding the details of the robbery, and one victim's identification of defendant in a lineup as someone who looked familiar from the robbery ( see, People v Hamlin, 71 N.Y.2d 750, 758).
The trial court also properly excluded the statement of a nontestifying accused accomplice that allegedly contained exculpatory evidence regarding defendant, on the ground that there was no showing that the statement in question, clearly intended to exculpate the declarant, enjoyed the presumed reliability of a statement against penal interest ( see, People v Maerling, 46 N.Y.2d 289, 295).
In deciding the appeal of codefendant Ricardo Nova, this Court rejected defendant's claim alleging impropriety in connection with the jury instructions ( People v. Nova, 198 A.D.2d 193, lv denied 83 N.Y.2d 808). Finally, as the Medical Examiner's audiotape of the autopsy herein does not constitute Rosario material, the People were not required to provide it to the defense ( see, People v. Washington, 86 N.Y.2d 189).
We perceive no abuse of discretion in sentencing.
Concur — Murphy, P.J., Ellerin, Kupferman, Williams and Tom, JJ.