People v. King
| Citation | 155 A.D.2d 480,547 N.Y.S.2d 140 |
| Parties | The PEOPLE, etc., Respondent, v. Benjamin KING, Appellant. |
| Decision Date | 06 November 1989 |
| Court | New York Supreme Court — Appellate Division |
Martin Geoffrey Goldberg, Franklin Square, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Tammy J. Smiley, of counsel; Mark A. Berman, on brief), for respondent.
Before MOLLEN, P.J., and LAWRENCE, EIBER and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered October 5, 1987, convicting him of attempted murder in the second degree (two counts) and robbery in the first degree (four counts), upon a jury verdict, and sentencing him to consecutive terms of 12 1/2 to 25 years' imprisonment on the convictions of attempted murder in the second degree, and terms of 8 1/3 to 25 years' imprisonment on each of the convictions of robbery in the first degree, to run concurrently with each other and with the sentences imposed for attempted murder in the second degree. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress certain statements made by the defendant to law enforcement officials.
ORDERED that the judgment is modified, on the law, by reducing the minimum term of the sentences imposed upon the defendant's convictions of attempted murder in the second degree from 12 1/2 to 8 1/3 years' imprisonment; as so modified, the judgment is affirmed.
Contrary to the defendant's contentions, the court properly admitted into evidence an inculpatory statement inadvertently overheard by a police officer as the defendant spoke to his mother on the telephone, which statement the defendant repeated to the officer after he had completed the call (see, People v. Harris, 57 N.Y.2d 335, 342-343, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803). The record reveals that the defendant, who was aware of the officer's presence only 10 feet away, spoke spontaneously, and not as a result of any police conduct or questioning (see, People v. Maerling, 46 N.Y.2d 289, 302-303, 413 N.Y.S.2d 316, 385 N.E.2d 1245; People v. Lynes, 49 N.Y.2d 286, 295, 425 N.Y.S.2d 295, 401 N.E.2d 405; cf., People v. Ferro, 63 N.Y.2d 316, 322, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717; see also, People v. Jones, 140 A.D.2d 372, 373, 527 N.Y.S.2d 857; People v. Sobolof, 109 A.D.2d 903, 904-905, 487 N.Y.S.2d 341). Moreover, the record establishes that ...
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