PEOPLE v. LEVAR CHUNG (2001)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter J.), rendered March 11, 1999, convicting him of murder in the second degree, criminal possession of a weapon in the fourth degree, and tampering with physical evidence, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Rosenzweig, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

The defendant, 16 years old at all relevant times, argues that his inculpatory statements must be suppressed because he was subjected to police questioning in the absence of his mother.   Initially, the record demonstrates that the defendant was advised of, and knowingly, voluntarily, and intelligently waived his constitutional rights (People v. Miles, 276 A.D.2d 566, 714 N.Y.S.2d 714).   Moreover, the police were not obligated to refrain from questioning the 16-year-old defendant in his mother's absence (see, People v. Delgado, 269 A.D.2d 604, 704 N.Y.S.2d 273;  People v. Page, 225 A.D.2d 831, 638 N.Y.S.2d 985).   The police did not employ deception or trickery to isolate the defendant from his mother or any other relevant “supportive adults” (People v. Salaam, 83 N.Y.2d 51, 55, 607 N.Y.S.2d 899, 629 N.E.2d 371;  see, People v. White, 276 A.D.2d 652, 714 N.Y.S.2d 896).   In any event, ample evidence was adduced at the Huntley hearing (see, People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179) demonstrating that the defendant's mother was present only during his questioning.   The testimony of the defendant's mother that she was only present during the separate interrogation of her younger son, the defendant's 13-year-old brother who was also involved in the underlying incident, created an issue of credibility.   Since the hearing court's factual determination is supported by the record, it will not be disturbed on appeal (see, People v. Manning, 251 A.D.2d 350, 673 N.Y.S.2d 1003;  People v. Garafolo, 44 A.D.2d 86, 353 N.Y.S.2d 500).

Viewing the evidence in a light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to prove the defendant's guilt beyond a reasonable doubt (see, People v. Chapman, 268 A.D.2d 530, 701 N.Y.S.2d 664;  People v. Morgan, 207 A.D.2d 501, 615 N.Y.S.2d 913, affd. 87 N.Y.2d 878, 638 N.Y.S.2d 942, 662 N.E.2d 260;  People v. Watson, 156 A.D.2d 403, 548 N.Y.S.2d 356).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

The defendant's remaining contentions are without merit.

KRAUSMAN, J.P., S. MILLER, SCHMIDT and CRANE, JJ., concur.