People v. Kourani , 683 N.Y.S.2d 570 ( 1998 )

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered October 9, 1997, convicting him of robbery in the first degree, burglary in the first degree, and endangering the welfare of a child (three 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 a statement made by him to law enforcement officials.

Ordered that the judgment is affirmed.

At the suppression hearing, the investigating detectives testified that the defendant agreed to accompany them to the police precinct house to assist them in their investigation of the robbery of the defendant’s brother and his family. The detectives did not tell the defendant that he was a suspect in the investigation at that time. At the defendant’s suggestion, they took his car so that he could drive home when they were finished. As a safety precaution, one of the detectives searched the defendant before they got into the car, but the defendant was not handcuffed.

At the precinct house, one of the detectives told the defendant that he was a suspect in the case. The detectives allowed the defendant to use the restroom as needed, drink water, and make phone calls. The detectives offered the defendant food, but he declined the offer. The detectives permitted the defendant to telephone his brother, but did not themselves have any conversation of substance with the brother. Approximately seven and three-quarter hours after the detectives arrived at the precinct with the defendant, one of the detectives read the defendant his Fifth Amendment rights in Spanish. The defendant then confessed to participating in the robbery of his brother’s house.

The hearing court found that the defendant was not in custody at the time he made his statement to the police. The court also found that the statement was freely, knowingly, and voluntarily made after the defendant was informed of his Fifth Amendment rights. The court expressly credited the testimony of the detectives, and discredited the testimony of the defendant and his brother. The court’s findings of fact are supported by the hearing record, and we do not find it appropriate to make new findings (see, People v Tankleff, 199 AD2d 550, affd 84 NY2d 992; People v Johnson, 160 AD2d 813, 814). Based upon those findings of fact, the hearing court properly refused to suppress the statement (see, People v Thomas, 223 AD2d 612; People v Sohn, 148 AD2d 553).

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

We find no merit to the defendant’s contention that the trial court erred in denying his objection to the prosecution’s exercise of peremptory challenges. The record of the voir dire indicates that the trial court denied the defendant’s objection based on the court’s determination that the defendant failed to demonstrate prima facie that the prosecution exercised its challenges with a discriminatory purpose (see, Batson v Kentucky, 476 US 79, 96; People v Kern, 75 NY2d 638, cert denied 498 US 824). Upon our review of the record, we agree with the trial court’s determination that the pattern of the prosecution’s challenges was insufficient to support the defendant’s objection (see, People v Steele, 79 NY2d 317; People v Vidal, 212 AD2d 553).

The defendant’s contention that he was denied the right to confrontation is unpreserved for review (see, CPL 470.05 [2]; People v Russell, 71 NY2d 1016), as is his claim that Detective Siraco’s testimony regarding eyewitness descriptions of the robbers was admissible to rebut a claim of recent fabrication. In any event, with regard to the confrontation issue, it was counsel for the defendant who elicited testimony regarding the out-of-court statement of a codefendant (see, Bruton v United States, 391 US 123). As to Detective Siraco’s testimony, the prosecution never advanced a theory of recent fabrication.

The defendant did not object to the prosecution’s cross-examination of his alibi witnesses with regard to their failure to come forward with information favorable to the defendant (see, People v Miller, 89 NY2d 1077; People v Dawson, 50 NY2d 311). In light of the gap of more than three months between the defendant’s arrest and defense counsel’s request that the witnesses refrain from speaking to the police, the trial court correctly instructed the jury with regard to the significance of the witnesses’ failure to come forward prior to defense counsel’s request (see, People v Miller, supra).

Moreover, the defendant’s request for a missing witness charge, made after both sides had rested their respective cases, was untimely (see, People v Woodford, 200 AD2d 644; People v Catoe, 181 AD2d 905; People v Randall, 177 AD2d 581).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions, including the claims of prosecutorial misconduct, are either unpreserved for appellate review or without merit. Coopertino, Thompson and Sullivan, JJ., concur.