People v. Stewart
| Decision Date | 23 April 1990 |
| Parties | The PEOPLE, etc., Respondent, v. Durwin STEWART, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Thoms E. Crice, New York City, for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Peter A. Weinstein and Linda Cantoni, of counsel), for respondent.
Before THOMPSON, J.P., and BROWN, LAWRENCE and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered December 7, 1982, convicting him of attempted robbery in the second degree (two counts) and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
We find no error in the hearing court's denial of the defendant's motion pursuant to CPL 710.30 to suppress various statements overheard by a police officer that were made by the defendant and a codefendant while the two were conversing in the police station holding cell. Not only were the contested statements voluntarily made (see, People v. Mirenda, 23 N.Y.2d 439, 448, 297 N.Y.S.2d 532, 245 N.E.2d 194), they were not made to the police or to one of their agents (see, People v. Rodriguez, 114 A.D.2d 525, 494 N.Y.S.2d 426; People v. Smith, 100 Misc.2d 823, 420 N.Y.S.2d 132.) Moreover, the People were not required to serve the defendant with notice of their intent to offer into evidence testimony as to an answer given by the defendant in response to a pedigree question, since the answer was not properly subject to a motion to suppress under CPL 60.45 (see, CPL 710.30[1][a]; People v. Rodriquez, 39 N.Y.2d 976, 387 N.Y.S.2d 110, 354 N.E.2d 850; People v. Miller, 123 A.D.2d 721, 507 N.Y.S.2d 409). Similarly, the People did not have to notify the defendant of their intent to use a statement he made at his arrest wherein he professed his innocence as the remark was voluntary and part of the res gestae (see, People v. Mirenda, supra; People v. Wells, 133 A.D.2d 385, 519 N.Y.S.2d 553).
The defendant also argues he was deprived of a fair trial as a result of prosecutorial misconduct during the People's summation. However, the defendant failed to object to one of the contested remarks, rendering any contention regarding it unpreserved for appellate review (see, CPL 470.05[2]; People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430; People v. Udzinski, 146 A.D.2d 245, 248-252, 541 N.Y.S.2d 9), and the other remarks constituted fair...
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