Opinion
February 4, 1991
Appeal from the County Court, Nassau County (Delin, J.).
Ordered that the judgment is affirmed.
The proper method of challenging the facial validity of an indictment is by a pretrial motion to dismiss and when not timely raised, the issue is not preserved for appellate review (see, CPL 210.20, 210.25 Crim. Proc.; People v Iannone, 45 N.Y.2d 589; People v Danylocke, 150 A.D.2d 480, 481; People v Udzinski, 146 A.D.2d 245, 258; People v Cassidy, 133 A.D.2d 374, 377; People v Byrdsong, 133 A.D.2d 164, 165; People v Smith, 113 A.D.2d 905, 907; People v Di Noia, 105 A.D.2d 799, 800, lv denied sub nom. People v Rapetti, 64 N.Y.2d 763, cert denied 471 U.S. 1022). Having failed to include in his pretrial omnibus motion the claims that the indictment was jurisdictionally defective because it charged the defendant with an act that did not constitute a crime and that it failed to assert facts to support every element of the offense charged, the defendant has not properly preserved this issue for appellate review.
Contrary to the defendant's contentions, the statement which he unsuccessfully sought to suppress was, in fact, made spontaneously. The record supports the hearing court's finding that the defendant spoke with genuine spontaneity and not as a result of police conduct which should have reasonably been anticipated to evoke a declaration from the defendant (see, Rhode Is. v Innis, 446 U.S. 291, 301; People v Lynes, 49 N.Y.2d 286, 295; People v Scalafani, 150 A.D.2d 400, 401; People v Sobolof, 109 A.D.2d 903). In any event, even if the defendant's statement was not spontaneous, it was admissible pursuant to a valid waiver of his constitutional rights. To be valid, a waiver need not be express. "Silence, coupled with an understanding of the rights and a course of conduct indicating waiver, is sufficient" (People v Bretts, 111 A.D.2d 864, 865; see, North Carolina v Butler, 441 U.S. 369; People v Sirno, 76 N.Y.2d 967; People v Rodriguez, 167 A.D.2d 562). The fact that the defendant was twice given the Miranda warnings and on the second time indicated that he understood them, coupled with the fact that the defendant made the statement less than two hours after being advised of his rights, indicates that a valid waiver had indeed occurred (see, People v Bretts, supra).
Viewing the evidence in a light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to prove beyond a reasonable doubt that the device attached to the firearm possessed by the defendant was in fact, a firearm silencer (see, Penal Law § 265.00; United States v Thomas, 567 F.2d 299, 301). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15). Brown, J.P., Harwood, Miller and Ritter, JJ., concur.