Opinion
December 12, 1988
Appeal from the Supreme Court, Kings County (Goldman, J.).
Ordered that the judgment is affirmed.
On January 3, 1983, Fitzgerald Johnson, 65, was found dying of gunshot wounds on Hamilton Place in Brooklyn. The police were informed that one of the assailants was wearing a maroon leather hat and coat and another was wearing a silver and blue bomber jacket.
The defendant was among a group of young people who were taken to the police station for questioning as witnesses. At about 9:30 P.M. the defendant was asked if he knew anyone who owned a burgundy leather coat with a matching hat. The defendant said that he did, and that he had loaned it to a friend named Larry Ling earlier that day. The defendant then stated that four youths had come to his house to discuss a robbery, and that they asked him to help. The defendant was allowed to converse with his mother, and then he stated that he had seen two of his friends, Raymond Strawder and Derrick Richardson, shoot Mr. Johnson.
Ronald Strawder, Raymond's brother, was interviewed and corroborated the defendant's account. Raymond was told that his brother had confessed and implicated him in the crime. Raymond then confessed, and said that he and the other four youths planned the crime at the defendant's house. At that time the defendant had given him the pistol that he used. After the crime the five youths returned to the defendant's home, and Raymond returned the pistol to the defendant.
On the strength of Raymond Strawder's statement, the police obtained a warrant to search the defendant's apartment. The search warrant was executed at 9:00 A.M. on January 4, 1984. The police recovered three spent .38 caliber shell casings, a brown suede holster, two brown bomber jackets and a maroon hat.
The hearing court suppressed the defendant's initial statement to the police and the statement that he had made after speaking with his mother. The court did not suppress the physical evidence that was found when the search warrant was executed.
On appeal, the defendant claims that the physical evidence should have been suppressed. He contends that, absent his illegally obtained statements, the police would not have interviewed Raymond Strawder and Raymond Strawder would not have told them that the murder weapons were at his apartment. This argument is not preserved for appellate review, because the defendant did not present it to the hearing court (see, People v Tutt, 38 N.Y.2d 1011, 1012-1013; People v Rondan, 116 A.D.2d 750, 752, lv denied 67 N.Y.2d 950). In any event, the taint was sufficiently attenuated because the police did not exploit the illegally obtained confession in questioning Raymond Strawder, and because Raymond Strawder gave his statement voluntarily (see, People v Barksdale, 133 A.D.2d 770, lv denied 70 N.Y.2d 1003) after being advised that his brother Ronald and Larry Ling, whose statements had been legally obtained as participants in the incident, had implicated him.
The defendant also contends that the affidavit which accompanied the application for a search warrant was insufficient because the information that was given would not support the conclusion that his gun could be found in the place to be searched. The affidavit described Raymond Strawder's confession and stated that he had given the pistol used in the murder to the defendant in the defendant's apartment. This presented the issuing Judge with "information sufficient to support a reasonable belief that * * * evidence of a crime may be found in a certain place" (see, People v Bigelow, 66 N.Y.2d 417, 423; People v Corley, 122 A.D.2d 279, lv denied 68 N.Y.2d 811).
The defendant did not preserve his claim regarding defects in his guilty pleas, because he did not move pursuant to CPL 440.10 to vacate the judgment (see, People v Pellegrino, 60 N.Y.2d 636, 637; People v Torres, 111 A.D.2d 837). Reversal in the interest of justice is not warranted. The record reveals that the pleas were knowingly and voluntarily entered with the assistance of counsel, and there is no suggestion that the pleas were improvident and baseless (see, People v Caban, 131 A.D.2d 863).
The sentencing court gave appropriate consideration to the defendant's circumstances, and there is no need to disturb his sentences (see, People v Suitte, 90 A.D.2d 80). Bracken, J.P., Rubin, Sullivan and Balletta, JJ., concur.