People v. Harper
| Decision Date | 04 December 1989 |
| Citation | 156 A.D.2d 380,548 N.Y.S.2d 941 |
| Parties | The PEOPLE, etc., Respondent, v. Jeffrey HARPER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
James E. Siff, New York City, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Ann Bordley, Judith Davidow and David Leiwant, of counsel), for respondent.
Before MANGANO, J.P., and BRACKEN, KUNZEMAN and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Meyerson, J.), rendered May 29, 1985, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Lombardo, J.), of that branch of the defendant's omnibus motion which was to suppress statements made to law-enforcement officials.
ORDERED that the judgment is affirmed.
The defendant was charged and tried, with a codefendant, Diana Ortiz (see, People v. Ortiz, 156 A.D.2d 396, 548 N.Y.S.2d 1004 [decided herewith], as an accessory in the attempted robbery and felony murder of the victim, Scott Parker. The defendant was struck in the left arm by a bullet in the course of the robbery attempt. At the hospital, after having been advised of his Miranda rights (see, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), the defendant made oral statements and gave a videotaped interview inculpating himself and his accomplices in the attempted robbery and fatal shooting of the victim. All of the defendant's statements were admitted into evidence at trial.
Upon appeal, the defendant argues that his statements should have been suppressed on the ground that they were taken in violation of his right to counsel. Although he has not alleged that the statements were involuntarily made, the defendant asserts that since he had other criminal charges pending against him, for which he had been arrested three weeks prior to the instant offense, and which had arisen in the same police precinct, it was improper for the police to question him in the absence of counsel.
At the Huntley hearing, the defendant testified that two detectives who visited him in the hospital had discussed his pending criminal cases with him. However, the hearing court found this testimony incredible and discounted it. Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the hearing court, which saw and heard the witnesses (cf., People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380). Its determination...
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