People v. Booker

Citation429 N.Y.S.2d 168,406 N.E.2d 1062,49 N.Y.2d 989
Parties, 406 N.E.2d 1062 The PEOPLE of the State of New York, Respondent, v. William A. BOOKER, Appellant.
Decision Date29 April 1980
CourtNew York Court of Appeals

Edward J. Nowak, Public Defender (Brian Shiffrin, Rochester, of counsel), for appellant.

Lawrence T. Kurlander, Dist. Atty. (Kenneth R. Fisher, Rochester, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order appealed from should be affirmed. 66 App.Div.2d 474, 414 N.Y.S.2d 420. Our examination of the record shows that defendant's motion to suppress the gun was not premised upon the failure to provide warnings in accordance with the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. This argument is not one which constitutes a question of law reviewable in this court despite the failure to timely raise the issue (compare People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920, with People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371. Hence, defendant's failure to preserve this issue for review precludes his reliance upon it upon this appeal and prevents our consideration of the merits of his argument with respect to the alleged illegality of the seizure of the gun and its effect upon the subsequent statement.

As to defendant's claim that the court erred in not granting his motion for a mistrial when it became evident that one of the witnesses for the prosecution could not be subjected to intensive cross-examination because of her physical condition, we conclude that the court's instruction to the jury to disregard her testimony altogether sufficed in the circumstances of this case to avoid any violation of defendant's right of confrontation.

COOKE, C. J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.

Order affirmed in a memorandum.

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9 cases
  • People v. Udzinski
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Abril 1989
    ...on delay in prosecution]; People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363 [Payton error]; People v. Booker, 49 N.Y.2d 989, 429 N.Y.S.2d 168, 406 N.E.2d 1062; People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920 [Miranda error]; People v. Lieberman, 47 N.Y.2d ......
  • People v. Jones
    • United States
    • New York Supreme Court — Appellate Division
    • 26 Mayo 1981
    ...N.Y.2d 829, 440 N.Y.S.2d 172, 422 N.E.2d 817 People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920; People v. Booker, 49 N.Y.2d 989, 429 N.Y.S.2d 168, 406 N.E.2d 1062 People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363 see, also, People v. Lieberman, 47 N.Y.2d 931......
  • People v. Lopez
    • United States
    • New York Supreme Court — Appellate Division
    • 23 Abril 1987
    ...seizure (People v. Patterson, 53 N.Y.2d 829, 440 N.Y.S.2d 172, 422 N.E.2d 817) or Miranda warnings (People v. Booker, 49 N.Y.2d 989, 429 N.Y.S.2d 168, 406 N.E.2d 1062), and physical evidence seized following a warrantless entry (People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d......
  • People v. Martin
    • United States
    • New York Court of Appeals Court of Appeals
    • 3 Julio 1980
    ...foreclosed by our rule of "preservation" from advancing any such ground or reversal on appeal to this court (People v. Booker, 49 N.Y.2d 989, 429 N.Y.S.2d 168, 406 N.E.2d 1062; People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920; cf. People v. De Bour, 40 N.Y.2d 210, 214, 386 N......
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