Opinion
Nos. 3360, 3360A.
October 14, 2010.
Judgments, Supreme Court, Bronx County (David Stadtmauer, J.), rendered June 11, 2008, convicting defendant, upon his pleas of guilty, of assault in the third degree and attempted assault in the third degree, and sentencing him to an aggregate term of 45 days, unanimously affirmed.
Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Dewey LeBoeuf, LLP, New York (Krista M. Ellis of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Maureen L. Grosdidier of counsel), for respondent.
Before: Friedman J.P., Nardelli, DeGrasse, Freedman and Manzanet-Daniels, JJ.
Although the record does not establish that defendant made a valid waiver of his right to appeal, we find that the court properly denied defendant's suppression motion. The People met their burden to prove beyond a reasonable doubt the voluntariness of defendant's exculpatory statement to an officer at the scene of a street altercation, made in response to a simple request that defendant clarify the situation. The People were not required to produce the arresting officer's partner, who had a brief initial conversation with defendant, since defendant did not present a "bona fide factual predicate" demonstrating that the nontestifying officer possessed "material evidence on the question of whether the statements were the product overtly or inherently of coercive methods" ( People v Witherspoon, 66 NY2d 973, 974). Given the fast-paced circumstances, defendant's assertion that the partner may have done or said something bearing on voluntariness is speculative.
We have considered and rejected defendant's remaining claims.