People v. Williams , 423 N.Y.S.2d 54 ( 1979 )

Judgment, Supreme Court, New York County, rendered January 10, 1978, after denial of a motion to suppress a statement, and after a jury trial convicting the defendant of the crime of attempt to commit the crime of robbery in the second degree, and sentencing him to an indeterminate term of imprisonment of two to four years, is affirmed. The suppression hearing presented a simple issue of credibility which the hearing Judge, who saw and heard the witnesses, resolved in favor of the People. We do not think we are warranted in interfering with his determination on the basis of the cold record. The complainant had just been the victim of a violent mugging at 4:00 a.m., had been drinking and was "high,” and by his own testimony was busy brushing off his clothes and did not pay attention to anyone in the patrol car. In these circumstances, the fact that the complainant did not, two years after the event, remember a conversation between defendant and the police officer hardly makes the court’s finding against the weight of the evidence. Indeed, it appears to us that the thrust of the attack on the suppression ruling is that defendant did not make a statement. But that is not the relevant issue on a Huntley suppression hearing. On such a hearing "any finding as to whether the defendant actually made the statements [is] merely gratuitous and of no legal effect.” (People v Washington, 68 AD2d 90, 96, appeal to Court of Appeals pending.) That issue is solely one for the jury. (People v Washington, supra, p 98; cf. Manson v Brathwaite, 432 US 98, 116.) The relevant issue on a Huntley suppression hearing is whether if the statement was made, it was made either involuntarily or without appropriate Miranda procedures. There is no evidence that if the statement was made, it was involuntary or without appropriate Miranda warnings. Appellant’s other claims of error do not warrant reversal. Concur—Birns, J. P., Fein and Silverman, JJ.