Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentJun 8, 1992
184 A.D.2d 586 (N.Y. App. Div. 1992)
184 A.D.2d 586584 N.Y.S.2d 641

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  • People v. Whaul

    …Moreover, the Supreme Court providently exercised its discretion in denying the defendant's request to call…

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June 8, 1992

Appeal from the Supreme Court, Queens County (Beerman, J.).

Ordered that the judgment and amended judgment are affirmed.

Under Indictment No. N13132/89, the defendant was charged with making three separate sales of cocaine to an undercover police officer. Officer William Ryan testified at a combined Wade/Huntley hearing that after he arrested the defendant, he drove him to the precinct where the defendant made an inculpatory statement. The hearing court found that although the defendant had not been given Miranda warnings before he made the statement, it was nevertheless admissible as it was spontaneous and not the result of police interrogation. However, subsequent to this decision, the defense counsel became aware of a conversation between the defendant and the arresting officer in which the defendant attempted to cooperate with the police in connection with the investigation of certain notorious drug sellers. Accordingly, the court reopened the hearing and the arresting officer testified that the conversation concerning the defendant's cooperation with the police did not occur until after the defendant had made his initial statement.

The defendant contends that the court erred in denying his request to call Police Officers Massimillo and Sullivan, who accompanied him and Officer Ryan to the precinct. He urges that their testimony would have clarified the issue of when his statement was made. However, we find that the court did not improvidently exercise its discretion in denying the defendant's request. The arresting officer, Ryan, testified that the defendant's inculpatory statement preceded the conversation in which the defendant provided information as to other drug dealers and the defendant failed to establish a "bona fide factual predicate" demonstrating that the other officers possessed relevant and noncumulative information (People v. Hucks, 175 A.D.2d 213, 214; see, People v. Bailey, 179 A.D.2d 662).

We find that defendant's statement was properly deemed admissible as it was voluntary, spontaneous, and not the product of custodial interrogation (see, People v. Rodriguez, 167 A.D.2d 562; People v. Harrington, 163 A.D.2d 327; People v. Rios, 123 A.D.2d 404; People v. Bryant, 87 A.D.2d 873, affd 59 N.Y.2d 786).

We have reviewed the defendant's remaining contentions with respect to his conviction under Indictment No. N13132/89 and find them to be without merit.

In light of our determination, there is no basis for vacatur of the defendant's plea under Indictment No. N10878/88 (see, People v. Clark, 45 N.Y.2d 432). Harwood, J.P., Rosenblatt, Ritter and Pizzuto, JJ., concur.