Opinion
September 8, 1987
Appeal from the Supreme Court, Kings County (Scholnick, J.).
Ordered that the judgment is affirmed.
We find that the defendant's arrest violated "[n]either the letter nor the spirit of the Payton [Payton v. New York, 445 U.S. 573] rule" (People v. Minley, 68 N.Y.2d 952, 953).
Further, the People did establish beyond a reasonable doubt that the defendant's statements were voluntary. That the police failed to scrupulously honor the defendant's right to remain silent was not raised at the hearing and therefore the issue is not preserved for our review as a matter of law (see, People v Mandrachio, 55 N.Y.2d 906, cert denied 457 U.S. 1122). In any event, the defendant's statements do not warrant a finding that he invoked his right to remain silent with respect to police questioning (cf., People v. Wander, 47 N.Y.2d 724; People v Pugh, 70 A.D.2d 664). The record further indicates that the then 16-year-old defendant was read his Miranda rights, which he indicated that he understood; during his 12-hour detention (2:30 P.M. to 2:30 A.M.) before his first inculpatory statement, he was questioned for at most 2 1/2 hours, and the questioning was not continuous; he was permitted to sleep for four hours; he did not request any food (missing only one normal mealtime) and he was given water upon his request. The defendant's contention that he was hungry and frightened is not supported by the credible evidence. Moreover, he was not subjected to "the kind of persistent and overbearing interrogation which has been held to be objectionable" (People v. Robinson, 31 A.D.2d 724, 725; cf., People v. Leonard, 59 A.D.2d 1). There was no credible evidence that the defendant was intentionally isolated from his family and friends. Finally, with regard to any alleged police trickery, we agree with the hearing court that the police officers' conduct was not "`so fundamentally unfair as to deny [the defendant] due process'" nor was there a showing "`that * * * promise[s] or threat[s were] made that could induce a false confession'" People v. Zehner, 112 A.D.2d 465, 466, lv denied 66 N.Y.2d 619, quoting from People v. Tarsia, 50 N.Y.2d 1, 11; see, People v Robinson, 31 A.D.2d 724, supra). Thus, we find no basis to disturb the hearing court's determination that suppression of the defendant's statements was not warranted. Brown, J.P., Lawrence, Eiber and Spatt, JJ., concur.