Opinion
April 13, 1992
Appeal from the Supreme Court, Kings County (Goldman, J.).
Ordered that the judgment is affirmed.
The defendant's conviction of murder in the second degree arose out of the fatal shooting of his brother-in-law, Peter Ochetal, on February 16, 1989.
We agree with the defendant that the Supreme Court erred in denying suppression of certain physical evidence, i.e., the defendant's car. The defendant's car was retrieved by the police as a result of information supplied by the defendant in statements which were properly suppressed by the Supreme Court (see, People v Prochilo, 41 N.Y.2d 759; People v Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851; People v Paulin, 33 A.D.2d 105, affd 25 N.Y.2d 445). The car thus represented tainted fruit of illegal police conduct, and the record at the suppression hearing fails to establish with a "very high degree of probability" (People v Payton, 45 N.Y.2d 300, 313, revd 445 U.S. 573, on remand 51 N.Y.2d 169) that the defendant's car "would inevitably have been discovered irrespective of the initial wrong" (People v Stith, 69 N.Y.2d 313, 318). Nevertheless, in view of the overwhelming evidence in the record of the defendant's guilt, this error must be considered harmless (see, People v Crimmins, 36 N.Y.2d 230).
The defendant also argues on the instant appeal that the court, in its charge on reasonable doubt, "diminished the People's burden of proof". This issue has not been preserved for appellate review (CPL 470.05). In any event, a review of the record indicates that the charge, considered as a whole, properly explained the concept of reasonable doubt to the jury (see, People v Lawton, 144 A.D.2d 584; People v Fisher, 112 A.D.2d 378). Mangano, P.J., Thompson, Bracken and Pizzuto, JJ., concur.