PEOPLE v. MITCHELL (1998)

Defendant was convicted after a jury trial of robbery in the first degree (Penal Law § 160.15[3] ) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ).  We conclude that the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 We reject the contention of defendant that his confession was involuntary because it was induced by police deception, i.e., the police officer's failure to inform him that the victim told the police that the robber was clean shaven and that the victim was unable to identify defendant in a lineup or identify the clothes that the robber wore during the robbery.   The withholding of that information from defendant did not create a substantial risk that he would falsely incriminate himself (see, CPL 60.45[2][b][i] ).  Such withholding was not “so fundamentally unfair as to deny due process”, nor “could [it] have induced a false confession” (People v. Hall, 152 A.D.2d 948, 949, 543 N.Y.S.2d 820, lv. denied 74 N.Y.2d 847, 546 N.Y.S.2d 1012, 546 N.E.2d 195;  see, People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188).

 Defendant also contends that his confession was induced by the officer's promise that he would be sentenced to six months of drug rehabilitation.   The officer testified that he offered to help defendant obtain drug rehabilitation but that he did so only after defendant made his confession and that the offer did not include a sentencing promise.   The contrary testimony of defendant “presented a credibility issue for the suppression court, which had the ‘particular advantage of having seen and heard the witnesses' ” (People v. Wade, 236 A.D.2d 777, 778, 653 N.Y.S.2d 773, lv. denied 89 N.Y.2d 1016, 658 N.Y.S.2d 255, 680 N.E.2d 629, quoting People v. Williams, 202 A.D.2d 976, 612 N.Y.S.2d 985, lv. denied 83 N.Y.2d 916, 614 N.Y.S.2d 398, 637 N.E.2d 289;  see, 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).   County Court's resolution of that issue is supported by the record and should not be disturbed (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Gessner, 188 A.D.2d 1079, 592 N.Y.S.2d 1017, lv. denied 81 N.Y.2d 1073, 601 N.Y.S.2d 592, 619 N.E.2d 670).

Judgment unanimously affirmed.

MEMORANDUM: