Opinion
August 31, 1987
Appeal from the County Court, Suffolk County (Namm, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's assertions, we conclude that the introduction at trial of certain incriminating statements made by the defendant in the presence of and directly to law enforcement officials does not mandate a reversal of his conviction.
The first statement challenged by the defendant on appeal, in sum and substance, imparted that the murder weapon had accidentally discharged when grabbed by the victim. We find that this statement, even if erroneously admitted, could not have contributed to defendant's conviction (see, People v. Crimmins, 36 N.Y.2d 230, 237) in view of the facts that the defendant had admitted to several witnesses that he had purposefully shot the victim, that at least five witnesses testified that the defendant had informed them of his plans and intent to commit the robbery, and that he had previously displayed to some of these witnesses certain objects which were later found at the scene of the crime, and, finally, in view of the defendant's highly damaging subsequent confession, which was properly admitted at trial. In this regard, we note, moreover, that the People also adduced ample circumstantial evidence linking the defendant to the crimes for which he now stands convicted. This evidence included footprints, found at the scene of the crime, which matched the soles of the defendant's sneakers; fibers, retrieved from the crime scene, which were identical to fibers discovered in the vehicle utilized during the crime; tire tracks matching the tires of this vehicle; chemically analyzed urine samples which were consistent with the defendant's blood type; and expended shot pellets recovered during the autopsy of the victim which proved to be identical to those in ammunition later seized from the codefendant's home. Accordingly, it cannot fairly be said that the introduction of the subject statement had any real bearing on the jury's verdict, considering the independent and overwhelming proof of guilt adduced by the prosecution.
Nor do we find merit in the defendant's contention that his subsequent confession, which was made at police headquarters, after the administration of Miranda warnings, was legally infirm since it was not preceded by an effective waiver of his constitutional rights. The thrust of the defendant's argument is that any purported waiver should have no legal force or effect because it was made without the presence of counsel although he was being represented by an attorney on pending unrelated charges.
The Court of Appeals, in People v. Bartolomeo ( 53 N.Y.2d 225), held that if the police have actual knowledge of a pending, unrelated charge against a defendant, they are obliged to inquire as to whether he is being represented by counsel with respect to that charge. The police, in the case at bar, fulfilled this obligation. Indeed, the record discloses that the police, who were aware of the existence of a pending charge against the defendant, affirmatively inquired as to the status of this charge. The defendant, in turn, responded that he had already pleaded guilty and that he did not have an attorney representing him with respect to that or any other pending charge. It was, therefore, entirely reasonable and lawful for the police to proceed with questioning in light of the defendant's representations (see, People v. Bertolo, 65 N.Y.2d 111; People v Lucarano, 61 N.Y.2d 138, rearg denied sub nom. People v. Walker, 62 N.Y.2d 803; People v. Alver, 111 A.D.2d 339).
We have reviewed defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be devoid of merit. Bracken, J.P., Niehoff, Eiber and Sullivan, JJ., concur.