People v. Fisher

136 A.D.2d 729, 524 N.Y.S.2d 68, 1988 N.Y. App. Div. LEXIS 860

Opinion

—Appeal by the defendant from a judgment of the County Court, Orange County (Colabella, J.), rendered November 3, 1983, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the court should have given a charge to the jury on the issue of whether he was represented by counsel on an unrelated crime (see, People v Bartolomeo, 53 NY2d 225; People v Rogers, 48 NY2d 167) has not been preserved for our review as he did not request such a charge at trial (see, People v Thomas, 50 NY2d 467). Further, assuming without deciding that such a charge is necessary in á proper case, here it was clearly unwarranted as the undisputed evidence at trial established that the defendant was in fact not represented by an attorney at the time of police questioning (see, People v Rosa, 65 NY2d 380, on remand 116 AD2d 489, Iv denied 67 NY2d 950; People v Kazmarick, 52 NY2d 322).

The court gave a thorough and proper charge on the issue of the voluntariness of any alleged statements made by the defendant. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.