People v. Da Wen Yu

131 A.D.2d 869, 517 N.Y.S.2d 418, 1987 N.Y. App. Div. LEXIS 48300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Friedmann, J.), rendered June 22, 1984, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Agresta, J.), of those branches of the defendant’s omnibus motion which were to suppress physical evidence and statements made by the defendant to law enforcement authorities.

Ordered that the judgment is affirmed.

There was adequate evidence in the record to support the hearing court’s conclusions that the statements given by the defendant at the police station were preceded by a proper recitation to him of his rights, and an intelligent and voluntary waiver of those rights, including the right to counsel (see, People v Reichbach, 131 AD2d 515; People v Smith, 118 AD2d 605, 606; cf., People v Hartley, 103 AD2d 935, affd 65 NY2d 703). The record similarly contained sufficient evidence to support findings that the defendant was not in custody when he made his earlier statements (see People v Yukl, 25 NY2d 585, mot to amend remittitur denied 26 NY2d 845, 883, cert denied 400 US 851; People v Rodney P., 21 NY2d 1) and, in any event, they were not elicited by the police (People v Kaye, 25 NY2d 139; cf., Rhode Is. v Innis, 446 US 291).

We have examined the defendant’s remaining contentions and find them to be either unpreserved or without merit. Thompson, J. P., Bracken, Lawrence and Harwood, JJ., concur.