Opinion
2799, 2799A.
Decided February 5, 2004.
Judgment, Supreme Court, New York County (Daniel FitzGerald, J. at hearing; Micki Scherer, J. at jury trial and sentence), rendered August 7, 2000, convicting defendant of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to concurrent terms of 9 years and 7 years, respectively, and order, same court (Micki Scherer, J.), entered on or about October 31, 2002, which denied defendant's motion to vacate the judgment pursuant to CPL 440.10, unanimously affirmed.
Patricia Curran, for Respondent.
Brian W. Stull, for Defendant-Appellant.
Before: Mazzarelli, J.P., Saxe, Ellerin, Williams, JJ.
The court properly denied defendant's motion to suppress statements. The hearing record establishes that at the time defendant made his initial statement to a detective, prior to any Miranda warnings, defendant was not in custody ( see People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851), and further establishes that this statement was voluntary and that it was not the product of an earlier unlawful detention ( see People v. Rogers, 52 N.Y.2d 527, 532-535, cert denied 454 U.S. 898). In any event, defendant's subsequent statements to another detective, made after Miranda warnings, were voluntary and were sufficiently attenuated from both the prior statement and from the earlier Fourth Amendment violation to be admissible.
The court properly denied defendant's motion to vacate the judgment. The trial record establishes that defendant received effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 713-714; see also Strickland v. Washington, 466 U.S. 668). While defendant asserts that counsel should have requested various jury instructions, these instructions were not critical to defendant's defense and their absence did not deprive him of a fair trial ( see People v. Hobot, 84 N.Y.2d 1021, 1024).
We perceive no basis for reducing the sentence.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.