PEOPLE v. LAWRENCE (2006)

Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered March 5, 2003, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony offender, to a term of 7 years to life, unanimously affirmed.

 Shortly after defendant's arrest, one officer showed another officer a bag of cocaine he had recovered from defendant's car and estimated the drug's weight, whereupon defendant, who was nearby, asked how the officer knew the weight of the cocaine.   The hearing court properly denied defendant's motion to suppress defendant's inquiry.   In the first place, prior to this interchange, an officer had administered Miranda warnings and there was sufficient evidence that the officer had stated the warnings correctly (see People v. Gonzalez, 55 N.Y.2d 720, 722, 447 N.Y.S.2d 145, 431 N.E.2d 630 [1981], cert. denied 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306 [1982];  People v. Dunkley, 200 A.D.2d 499, 606 N.Y.S.2d 638 [1994], lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301 [1994] ).   In any event, defendant's question was clearly spontaneous and not the product of the functional equivalent of interrogation.   The police conduct consisted of normal conversation at the scene of an arrest and it was neither intended nor reasonably likely to elicit an incriminating statement (see People v. Arriaga, 309 A.D.2d 544, 765 N.Y.S.2d 314 [2003], lv. denied 1 N.Y.3d 624, 777 N.Y.S.2d 23, 808 N.E.2d 1282 [2004];  People v. Smith, 298 A.D.2d 182, 749 N.Y.S.2d 486 [2002], lv. denied 99 N.Y.2d 585, 755 N.Y.S.2d 721, 785 N.E.2d 743 [2003];  compare People v. Ferro, 63 N.Y.2d 316, 322, 482 N.Y.S.2d 237, 472 N.E.2d 13 [1984],cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 [1985] ).   Furthermore, there was no connection between defendant's spontaneous inquiry and an earlier statement that the hearing court had found to be inadmissible.

 By failing to object, by failing to make specific objections, and by failing to request any further relief after objections were sustained, defendant has not preserved his present claims of prosecutorial error, and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

 Defendant is not entitled, pursuant to the amelioration doctrine of People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69 [1989], to the benefit of the reduced penalty contained in the Drug Law Reform Act (L. 2004, ch. 738), because the Legislature has expressly stated that the provision upon which defendant relies applies only to crimes committed after its effective date (People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005] ).   In any event, the amelioration doctrine does not apply where, as here, a defendant was sentenced before the new law's effective date (People v. Walker, 81 N.Y.2d 661, 666-667, 603 N.Y.S.2d 280, 623 N.E.2d 1 [1993] ).