PEOPLE v. MARQUEZ (2008)

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J. at hearing;  Caesar Cirigliano, J. at jury trial and sentence), rendered January 16, 2004, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him to a term of 12 years, unanimously affirmed.

 Defendant did not preserve his challenge to the sufficiency of the evidence and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.   The evidence established that the weapon at issue was a firearm within the meaning of Penal Law § 265.00(3).   Furthermore, counsel's failure to raise this issue did not deprive defendant of effective assistance (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

 The court properly denied defendant's motion to suppress his statements.   Initially, we find no merit to defendant's right to counsel claim.   There was a brief communication between defendant and a detective concerning a pending federal matter in which defendant was represented.   The federal case was unrelated to the instant case, the detective did not ask defendant any questions about either case, and there was clearly no exploitation of the federal case to obtain defendant's confession within the purview of People v. Cohen, 90 N.Y.2d 632, 638-642, 665 N.Y.S.2d 30, 687 N.E.2d 1313 [1997].   With regard to defendant's remaining claim, the record establishes that neither of the detectives who spoke to defendant prior to the second detective's administration of Miranda warnings engaged in any interrogation or its functional equivalent (see Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297 [1980];  People v. Boyd, 21 A.D.3d 1428, 801 N.Y.S.2d 469 [2005], lv. denied 6 N.Y.3d 773, 811 N.Y.S.2d 341, 844 N.E.2d 796 [2006] ).   Furthermore, we conclude that defendant's post-Miranda statements were admissible in any event (see People v. White, 10 N.Y.3d 286, 856 N.Y.S.2d 534, 886 N.E.2d 156 [2008] ).

The trial court delivered a sufficient jury instruction on the issue of the voluntariness of defendant's confession.   Since the trial evidence failed to raise a factual dispute as to whether Miranda warnings were given, the court properly declined to submit that issue to the jury (see People v. Cefaro, 23 N.Y.2d 283, 288-289, 296 N.Y.S.2d 345, 244 N.E.2d 42 [1968] ).