Opinion
October 4, 1991
Appeal from the Monroe County Court, Egan, J.
Present — Callahan, A.P.J., Doerr, Boomer, Green and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment entered upon a jury verdict convicting him of depraved mind murder, defendant argues that his written statement to the police should have been suppressed as the product of his unlawful arrest in his home and that the court erred in failing to instruct the jury to consider the charges in the specific order defendant requested. There is no merit to either contention. The police were lawfully in defendant's apartment executing a valid search warrant (cf., People v. Levan, 62 N.Y.2d 139, 144-145) and had probable cause to arrest him (see, People v. Johnson, 66 N.Y.2d 398, 402; People v. Bigelow, 66 N.Y.2d 417, 423; People v Carrasquillo, 54 N.Y.2d 248, 253-256). Defendant has failed to establish that the police intentionally failed to procure an arrest warrant to circumvent defendant's indelible right to counsel (see, People v. Keller, 148 A.D.2d 958, 960, lv denied 73 N.Y.2d 1017; cf., People v. Harris, 77 N.Y.2d 434, 440-441). The trial court's charge was adequate and proper. The court gave the jury the option of considering the submitted charges in the order requested by defendant but was not obligated to compel the jury to do so (see, People v. Gallagher, 69 N.Y.2d 525; People v Boettcher, 69 N.Y.2d 174).