Opinion
February 18, 1992
Appeal from the Supreme Court, Queens County (Leahy, J.).
Ordered that the judgment is affirmed.
We disagree with the defendant's contention that the hearing court should have suppressed his statements because the police knew that he had a pending case and that he actually had counsel on that case. Further, the defendant claims that his statements should have been suppressed as the fruit of an unlawful arrest. In People v. Bing ( 76 N.Y.2d 331), the Court of Appeals overruled its previous holding in People v. Bartolomeo ( 53 N.Y.2d 225), holding, in separate prosecutions of three defendants for crimes unrelated to prior pending charges on which they were represented by counsel, that the defendants' rights to counsel were not violated where each defendant, in the absence of counsel, waived his Miranda rights and was questioned by the police solely on matters unrelated to the prior pending charge (see, People v Bing, supra, at 349-351). Inasmuch as Bing holds that there is no longer a derivative right to the presence of counsel arising from an established attorney-client relationship on prior pending charges (see, People v. Bing, supra, at 345), the issue here becomes solely whether the court correctly found that the defendant had knowingly and voluntarily waived his Miranda rights and that the police questioned him solely on matters unrelated to the prior pending charge (see, People v. Bing, supra, at 351). The determination of the hearing court, which had the opportunity to observe the demeanor of the witnesses, should be afforded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Prochilo, 41 N.Y.2d 759, 761; People v. Lewis, 138 A.D.2d 632). Here, the record demonstrates that on October 11th, after arresting the defendant at the Five Towns Motor Inn, Detective John McCann advised him of his Miranda rights, that the defendant stated that he understood each of those rights, and that, after waiving them, he signed a statement that he had dictated to the police.
With regard to whether the defendant's arrest violated the mandates of Payton v. New York ( 445 U.S. 573) and People v Harris ( 72 N.Y.2d 614, revd 495 U.S. 14), we note that the defendant failed to raise this issue in his motion papers or at the hearing itself, and has therefore failed to preserve it for appellate review (see, People v. Martin, 50 N.Y.2d 1029; People v Udzinski, 146 A.D.2d 245, 249). In any event, the record demonstrates that Karen Timmons, who was also staying in the room, gave McCann the key to the room, thereby tacitly consenting to entry by the police (see, People v. Adams, 53 N.Y.2d 1; People v. Clement, 154 A.D.2d 545; People v. Schof, 136 A.D.2d 578).
We have considered the defendant's remaining contentions and find them to be either unpreserved or without merit. Harwood, J.P., Balletta, Rosenblatt and O'Brien, JJ., concur.