Opinion
Argued March 21, 1989
Decided April 27, 1989
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Patrick D. Monserrate, J.
David Steinberg for appellant.
Gerald F. Mollen, District Attorney (Joann Rose Parry of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was convicted of burglary and robbery after denial of a suppression motion challenging the admissibility of statements made to investigating and arresting police officers allegedly in violation of his rights under Miranda v Arizona ( 384 U.S. 436) and Payton v New York ( 445 U.S. 573).
During postarrest Miranda advisements, defendant stated to the police with respect to his right to consult with an attorney, "I have an attorney." All conversations ceased. The officers, after further investigation, later asked defendant who his attorney was. He responded, "I don't have an attorney." Defendant acknowledged he had made a telephone call to an attorney prior to this arrest that day, but stated he was just trying to find out whether the police could secure his military record fingerprints and that he did not discuss the criminal investigation with the attorney. Defendant was reinformed of his Miranda rights and then made incriminating statements.
The suppression court found that defendant did not unequivocally invoke his right to counsel and the Appellate Division affirmed. The resolutions of the lower courts in that respect rest on undisturbed findings supported in the record and are thus beyond the scope of this court's review.
The arrest having been made outside the defendant's home, no Payton issue is presented in this case. We have considered the other arguments and they are either unpreserved or without merit.
Chief Judge WACHTLER and Judges SIMONS, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur; Judge KAYE taking no part.
Order affirmed in a memorandum.