People v. Lopez

187 A.D.2d 383, 590 N.Y.S.2d 199, 1992 N.Y. App. Div. LEXIS 13126

Opinion

Judgment, Supreme Court, New York County (Franklin R. Weissberg, J.), rendered February 26, 1991, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and sentencing him, as a predicate felon, to a term of 5 to 10 years, unanimously affirmed.

Defendant has failed to preserve his argument that the court erred in failing to charge the jury that the prosecution had to prove beyond a reasonable doubt that defendant made an oral confession to the arresting police officer and that he did so voluntarily (CPL 470.05 [2]; People v Cefaro, 23 NY2d 283, 288-289). In any case, since defendant did not dispute the voluntariness of the statement at trial, the court was not required to instruct the jury to disregard the statement unless the People established that it was voluntarily made beyond a reasonable doubt (see, People v Taylor, 135 AD2d 202, lv denied 71 NY2d 1034). Further, the fact that defendant disputed the statement’s existence at trial did not warrant an instruction that the People had to prove the existence of the statement beyond a reasonable doubt. People v Hardy (124 AD2d 676) is distinguishable because there, the court improperly conveyed to the jury the impression that defendant had in fact made the contested statements. In any case, this Court declines to follow the reasoning advanced in People v Hardy (supra). Concur—Sullivan, J. P., Milonas, Ellerin and Kassal, JJ.