PEOPLE v. DAVIS (1999)

Appeal by the defendant from a judgment of the County Court, Westchester County (Leavitt, J.), rendered March 24, 1997, convicting him of murder in the second degree and criminal possession of a weapon in the second 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 statements made by him to law enforcement authorities.

ORDERED that the judgment is affirmed.

 The County Court properly denied that branch of the defendant's omnibus motion which was to suppress statements he made to law enforcement authorities.   The factual determinations of a hearing court are to be accorded great deference on appeal and will not be disturbed unless clearly unsupported by the evidence (see, People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Abney, 173 A.D.2d 545, 570 N.Y.S.2d 303;   People v. McIntyre, 138 A.D.2d 634, 526 N.Y.S.2d 217;  People v. Putland, 105 A.D.2d 199, 206, 482 N.Y.S.2d 882).   The record amply supports the finding of the hearing court that the defendant's first statement made to the police at the time he was arrested was preceded by a valid waiver of his Miranda rights (see, People v. Sirno, 76 N.Y.2d 967, 563 N.Y.S.2d 730, 565 N.E.2d 479;   People v. Davis, 55 N.Y.2d 731, 447 N.Y.S.2d 149, 431 N.E.2d 634).   With respect to the defendant's subsequent statements made to the police while he was in a holding cell, such statements were voluntary and spontaneous and were not the product of police interrogation.   Therefore, suppression was properly denied (see, People v. Rivers, 56 N.Y.2d 476, 479, 453 N.Y.S.2d 156, 438 N.E.2d 862;  People v. Tyson, 160 A.D.2d 826, 554 N.Y.S.2d 621;  People v. Scalafani, 150 A.D.2d 400, 540 N.Y.S.2d 832;  People v. Kern, 149 A.D.2d 187, 545 N.Y.S.2d 4, affd. 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235,cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50;  People v. Sims, 127 A.D.2d 712, 511 N.Y.S.2d 906).

 To the extent that the defendant's claim of ineffective assistance of counsel is premised upon his attorney's failure to present certain evidence, it involves matters which are dehors the record and is therefore not properly presented on direct appeal (see, People v. Boyd, 244 A.D.2d 497, 664 N.Y.S.2d 335;  People v. Lebrun, 234 A.D.2d 392, 651 N.Y.S.2d 544).   Insofar as we are able to review the defendant's claim of ineffective assistance of counsel, we find that defense counsel's performance amply met the standard of meaningful representation (see, People v. Ellis, 81 N.Y.2d 854, 597 N.Y.S.2d 623, 613 N.E.2d 529;  People v. Satterfield, 66 N.Y.2d 796, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

MEMORANDUM BY THE COURT.