Opinion
February 11, 1991
Appeal from the Supreme Court, Kings County (Aiello, J.).
Ordered that the judgment is affirmed.
We find that the court properly admitted a statement made by the defendant in the presence of a police officer. During the defendant's hospitalization under police guard, he told the police officer who was guarding him that he wanted to make a statement in the presence of his mother, his girlfriend, and an attorney. The defendant's mother and girlfriend were summoned to the hospital. However, after making inquiry, the officer informed the defendant that the police would be unable to take a statement from him at that time because they were unable to contact an attorney. When the defendant's mother and girlfriend arrived at his bedside, the defendant, without being questioned or prompted by the police officer, started speaking with them about a murder and robbery. The police officer, who was standing in the doorway of the defendant's room, only a foot from the defendant's bed, took notes. During the conversation with his mother and girlfriend, the defendant admitted that he had participated in the murder and robbery. The police officer neither prompted nor requested the defendant to make any statement. The admission into evidence of the inculpatory statement overheard by the officer did not violate the defendant's Sixth Amendment right to counsel (see, People v King, 155 A.D.2d 480).
The defendant's contention that the court improperly instructed the jury on robbery as the predicate felony for felony murder, rather than attempted robbery as was charged in the indictment, is not preserved for appellate review as no objection was made thereto (see, CPL 470.05). In any event, the charge was proper as the evidence revealed the existence of the underlying predicate felony (see, People v Gibson, 65 A.D.2d 235, cert denied 444 U.S. 861; People v Wroblewski, 109 A.D.2d 39, 44, affd 67 N.Y.2d 933, cert denied 479 U.S. 845).
We have examined the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Kunzeman, Eiber and O'Brien, JJ., concur.