PEOPLE v. GUTIERREZ (2005)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Copertino, J.), rendered December 3, 2001, convicting him of murder in the second degree and assault in the third degree, 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 his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 The defendant's contention that he could only have been convicted of intentional murder (see Penal Law § 125.25[1] ) and that the evidence was legally insufficient to support a conviction of depraved indifference murder (see Penal Law § 125.25[2];  People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634) is unpreserved for appellate review (see CPL 470.05 [2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and we decline to reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c], [6][a] ).

Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt of murder in the second degree and assault in the third degree was not against the weight of the evidence (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).

 The defendant's claim that his right to counsel attached before he made his statements to law enforcement authorities is without merit.   First, the intervention of an attorney at 12:30 P.M. was made not on behalf of the defendant specifically but rather, was made on behalf of all those being held at Town Hall. The defendant was not among them.   Second, by that hour, the defendant had made all of his incriminating statements concerning the decedent.   The admission of any statements he made after that hour were harmless beyond a reasonable doubt (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Wilkinson, 5 A.D.3d 512, 514, 773 N.Y.S.2d 111).   Thus, it is unnecessary to determine whether the attorney, intervening at the request of no one on the defendant's behalf specifically, was actually authorized to represent him (see generally People v. Grice, 100 N.Y.2d 318, 324 n. 2, 763 N.Y.S.2d 227, 794 N.E.2d 9).

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

The defendant's remaining contentions either are unpreserved for appellate review or without merit.