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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Kenneth COTTON, Appellant.

Decided: November 27, 2000

DAVID S. RITTER, J.P., FRED T. SANTUCCI, GLORIA GOLDSTEIN and SANDRA J. FEUERSTEIN, JJ. M. Sue Wycoff, New York, N.Y. (Natalie Rea of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Joel Meyers of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered June 19, 1996, convicting him of bribe receiving in the third degree, falsifying business records in the first degree, and official misconduct, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements he made to law enforcement authorities.

ORDERED that the judgment is affirmed.

The defendant contends that he invoked the right to counsel during questioning by an investigator at the time of his arrest, and that his statements made thereafter without counsel present should have been suppressed.   The Supreme Court properly found that the defendant did not invoke his right to counsel.   During the investigator's recitation of the Miranda warnings (see, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and immediately after he read to the defendant that portion which provides, “If you cannot afford an attorney one will be provided for you without cost.   Do you understand?”, the defendant interjected, “I have counsel”.   The investigator then reread that Miranda warning to the defendant, and the defendant replied that he understood.   After the defendant was apprised of his rights, he stated that he was willing to answer questions.   The defendant's statement did not constitute an unequivocal invocation of his right to counsel (see, People v. Glover, 87 N.Y.2d 838, 637 N.Y.S.2d 683, 661 N.E.2d 155;  People v. Hicks, 69 N.Y.2d 969, 516 N.Y.S.2d 648, 509 N.E.2d 343;  People v. Rowell, 59 N.Y.2d 727, 463 N.Y.S.2d 426, 450 N.E.2d 232;  People v. Diaz, 161 A.D.2d 789, 556 N.Y.S.2d 128).   Taken in context, the defendant was not requesting counsel to be present and, accordingly, the presence of counsel was not necessary to effectuate a valid waiver.

The defendant's remaining contention regarding a June 20, 1995, tape recording is unpreserved for appellate review (see, People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Cardona, 136 A.D.2d 556, 523 N.Y.S.2d 552).   In any event, the tape was properly admitted into evidence (see, People v. Ely, 68 N.Y.2d 520, 510 N.Y.S.2d 532, 503 N.E.2d 88;  People v. McGee, 49 N.Y.2d 48, 424 N.Y.S.2d 157, 399 N.E.2d 1177, cert. denied 446 U.S. 942, 100 S.Ct. 2166, 64 L.Ed.2d 797;  People v. Eddins, 247 A.D.2d 548, 669 N.Y.S.2d 605).


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