People v. Oquendo

121 A.D.2d 570, 503 N.Y.S.2d 619, 1986 N.Y. App. Div. LEXIS 58557

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered September 7, 1982, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to the police.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered.

We reverse the judgment of conviction based on the trial court’s defective charge on the presumption of innocence as well as its failure to charge the jury that every element of the crimes with which the defendant had been charged were required to be established beyond a reasonable doubt (see, People v Roldos, 112 AD2d 388). Contrary to the defendant’s contentions, however, the facts and circumstances of this case do not support the conclusion that the police deliberately denied the defendant’s father access to him in order to bar the exercise of the defendant’s right to counsel (see, People v Spivack, 111 AD2d 884). Moreover, we find that the defendant’s statements were freely and voluntarily given, and the determination of the hearing court with respect to the suppression issue is, therefore, affirmed. Lazer, J. P., Brown, Rubin and Eiber, JJ., concur.