Opinion
July 12, 1991
Appeal from the Niagara County Court, Hannigan, J.
Present — Dillon, P.J., Callahan, Denman, Green and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: The court properly charged the jury how to decide whether defendant's oral statement to the police was voluntarily made and whether defendant was in custody when he spoke (see, CPL 710.70; People v Graham, 55 N.Y.2d 144). The court also properly denied defendant's motion to suppress the statement. The court's finding that defendant was not in custody is entitled to great weight (see, People v Leonti, 18 N.Y.2d 384, 390, cert denied 389 U.S. 1007) and is supported by the record (see, People v Yukl, 25 N.Y.2d 585, 588, cert denied 400 U.S. 851). The gun was properly seized in plain view (see, Horton v California, 496 U.S. 128) following the police entry into the apartment upon consent of the tenant in control (see, People v Cosme, 48 N.Y.2d 286, 290-292).