PEOPLE v. DELANCY (1998)

 Defendant was convicted after a jury trial of assault in the first degree (Penal Law § 120.10[1] ) for his involvement in an incident in which the nine-year-old victim sustained third degree burns over 25% of his body after nail polish remover was poured on his clothing and he was set on fire.   County Court properly denied the motion of defendant to suppress his written confession.   The confession was prepared in the presence of defendant's mother, after defendant had received his Miranda warnings (see, Matter of James W., 130 A.D.2d 753, 516 N.Y.S.2d 48;  see also, People v. Smith, 217 A.D.2d 221, 234, 635 N.Y.S.2d 824, lv. denied 87 N.Y.2d 977, 642 N.Y.S.2d 207, 664 N.E.2d 1270).   Contrary to defendant's contention, the single inquiry made by a police officer before defendant was transported to the police station did not constitute custodial interrogation but was merely a noncustodial investigatory inquiry (see, People v. Bennett, 70 N.Y.2d 891, 893-894, 524 N.Y.S.2d 378, 519 N.E.2d 289;  People v. Baker, 188 A.D.2d 1012, 592 N.Y.S.2d 161, lv. denied 81 N.Y.2d 967, 598 N.Y.S.2d 768, 615 N.E.2d 225).

 The photographs depicting the nature and extent of the victim's injuries were properly admitted into evidence (see, People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Williams, 241 A.D.2d 911, 663 N.Y.S.2d 1023, lv. denied 91 N.Y.2d 837, 667 N.Y.S.2d 691, 690 N.E.2d 500).   The court properly exercised its discretion in determining that their probative value outweighed their prejudicial impact (see, People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278;  see generally, People v. Pobliner, 32 N.Y.2d 356, 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).

 Despite the prosecution's error in failing to ascertain and disclose to the defense the cooperation agreement between a prosecution witness and the County Attorney, defense counsel became aware of the agreement prior to cross-examining that witness.   Thus, defendant had a meaningful opportunity to use the allegedly exculpatory material for purposes of impeachment (see, People v. Osborne, 91 N.Y.2d 827, 828-829, 666 N.Y.S.2d 556, 689 N.E.2d 526, citing People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349;  see also, Matter of Shellito D., 226 A.D.2d 1075, 1076, 641 N.Y.S.2d 949).

 The court properly curtailed cross-examination of a prosecution witness.   It was improper to attempt to impeach the credibility of that witness with the hearsay statement of the nontestifying victim (see, People v. Jarrells, 190 A.D.2d 120, 125-126, 597 N.Y.S.2d 305).

We have examined defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: