People v. Davis , 749 N.Y.S.2d 918 ( 2002 )

Appeal from a judgment of Monroe County Court (Connell, J.), entered March 20, 2000, convicting defendant after a jury trial of, inter alia, murder in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: County Court properly denied the motion of defendant to suppress his statements to the police. The record of the suppression hearing supports the court’s determination that the statements were voluntarily made (see People v Miles, 276 AD2d 566, lv denied 96 NY2d 737), and defendant may not rely upon trial testimony to challenge the suppression ruling on appeal (see People v Diaz, 194 AD2d 688, 689, lv denied 82 NY2d 893). Defendant failed to preserve for our review his contention that his conviction of depraved indifference murder (Penal Law § 125.25 [2]) is not supported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Upon our review of the record, we conclude that the verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495). The sentence is not unduly harsh or severe. Present — Green, J.P., Hayes, Hurlbutt, Burns and Gorski, JJ.