PEOPLE v. JOHNSON (1997)

 County Court properly denied the motion to suppress defendant's statement to the police.   The promise by the District Attorney that he would not ask the court to sentence defendant as a persistent felony offender did not create “a substantial risk that the defendant might falsely incriminate himself” (CPL 60.45[2][b][i];  see, People v. Hamelinck, 222 A.D.2d 1024, 635 N.Y.S.2d 916, lv. denied 87 N.Y.2d 921, 641 N.Y.S.2d 603, 664 N.E.2d 514;  People v. Engert, 202 A.D.2d 1023, 1024, 609 N.Y.S.2d 979, lv. denied 83 N.Y.2d 910, 614 N.Y.S.2d 392, 637 N.E.2d 283).   Further, contrary to the contentions in defendant's first pro se supplemental brief, that statement was not obtained in violation of defendant's right to counsel (see, People v. Steward, 88 N.Y.2d 496, 502, 646 N.Y.S.2d 974, 670 N.E.2d 214, rearg. denied 88 N.Y.2d 1018, 649 N.Y.S.2d 384, 672 N.E.2d 610) or to remain silent (see, People v. Morton, 231 A.D.2d 927, 647 N.Y.S.2d 897, lv. denied 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508).

 The court properly denied defendant's motion to suppress physical evidence without conducting a hearing (see, People v. Dunn, 155 A.D.2d 75, 80, 553 N.Y.S.2d 257, affd. 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d 1054, cert. denied 501 U.S. 1219, 111 S.Ct. 2830, 115 L.Ed.2d 1000).   The record supports the court's determination that probable cause existed for the issuance of the warrant to search defendant's residence and vehicles (see, People v. Freitag, 148 A.D.2d 544, 545, 538 N.Y.S.2d 872, lv. denied 74 N.Y.2d 739, 545 N.Y.S.2d 114, 543 N.E.2d 757) and the order authorizing the taking of blood, saliva and hair samples from defendant (see, People v. Ireland, 178 A.D.2d 1008, 1009, 578 N.Y.S.2d 763, lv. denied 79 N.Y.2d 948, 583 N.Y.S.2d 202, 592 N.E.2d 810).   Evidence relating to the contents of the rape kit was properly received.   The People's failure to establish an unbroken chain of custody for all of the samples in the rape kit may be excused because “ ‘the circumstances provide reasonable assurances of the identity and unchanged condition’ of the evidence” (People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310, quoting Amaro v. City of New York, 40 N.Y.2d 30, 35, 386 N.Y.S.2d 19, 351 N.E.2d 665;  see, People v. Moyer, 186 A.D.2d 997, 998, 588 N.Y.S.2d 457, lv. denied 81 N.Y.2d 844, 595 N.Y.S.2d 743, 611 N.E.2d 782).

Defendant did not preserve for our review his contention that his sentence as a persistent felony offender was improperly based upon a youthful offender adjudication (see, People v. Torres, 194 A.D.2d 488, 599 N.Y.S.2d 561, lv. denied 82 N.Y.2d 727, 602 N.Y.S.2d 825, 622 N.E.2d 326), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Judgment unanimously affirmed.

MEMORANDUM: