PEOPLE v. CANNADY (1997)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Appelman, J.), rendered April 25, 1995, convicting him of assault in the second degree and endangering the welfare of a child, 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 made by him to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant was convicted of assault in the second degree for his reckless assault upon his five-week-old daughter, who suffered brain damage as a result of the assault.

 The defendant contends that his statements made to the police were the result of police deception and trickery and should have been suppressed.   Before obtaining the defendant's statements, the police informed his family that the custody of the infant would be affected by the defendant's cooperation with the police.   The defendant has failed to show that this was deceptive or so fundamentally unfair as to deny him due process (see, People v. Tarsia, 50 N.Y.2d 1, 427 N.Y.S.2d 944, 405 N.E.2d 188;  People v. Darvie, 224 A.D.2d 442, 637 N.Y.S.2d 762).   Moreover, the conduct of the police did not render the confession involuntary (see, People v. Foster, 193 A.D.2d 692, 598 N.Y.S.2d 36;  People v. Hassell, 180 A.D.2d 819, 820, 580 N.Y.S.2d 773).

 The prosecutor's participation in eliciting the defendant's videotaped statement did not require her disqualification at trial, because the defendant failed to make a significant showing that the prosecutor's pretrial conduct would become a material issue at trial.   Nor did the defendant demonstrate a substantial likelihood of prejudice from the prosecutor's participation at trial (see, People v. Paperno, 54 N.Y.2d 294, 445 N.Y.S.2d 119, 429 N.E.2d 797;  People v. Williams, 231 A.D.2d 751, 648 N.Y.S.2d 124).

The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit or do not warrant reversal.

MEMORANDUM BY THE COURT.