PEOPLE v. MARINELLI (1997)

Appeal by the defendant from (1) a judgment of the County Court, Westchester County (Angiolillo, J.), rendered June 6, 1995, convicting him of grand larceny in the third degree and grand larceny in the fourth degree under Indictment No. 94-01440, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, rendered July 19, 1995, convicting him of burglary in the second degree, petit larceny, and grand larceny in the fourth degree under Indictment No. 94-01291, upon his plea of guilty, and imposing sentence.   The appeals bring up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress certain statements made by the defendant to law enforcement officials.

ORDERED that the judgments are affirmed.

The defendant and the codefendant were arrested for criminal possession of a controlled substance and brought to a police station house.   Subsequently, the codefendant made statements implicating the defendant in thefts unrelated to the criminal possession of a controlled substance.   The police then commenced an investigation into those thefts.   The investigation culminated in the defendant admitting his participation in several thefts, which form the basis of the convictions now under review.   More than 24 hours after the arrest for criminal possession of a controlled substance, the defendant was arraigned on the theft crimes.   The hearing court subsequently determined that the arrest of the defendant for criminal possession of a controlled substance was illegal because the arresting officer lacked probable cause to arrest the defendant.   The defendant challenges, inter alia, the arraignment on the theft crimes and the failure to suppress his confession.

 Unnecessary delay in arraignment, without more, does not cause the accused's right to counsel to attach automatically (see, People v. Hopkins, 58 N.Y.2d 1079, 462 N.Y.S.2d 639, 449 N.E.2d 419;  People v. Dairsaw, 46 N.Y.2d 739, 413 N.Y.S.2d 640, 386 N.E.2d 249;  cert denied 440 U.S. 985, 99 S.Ct. 1800, 60 L.Ed.2d 248;  People v. Mosley, 135 A.D.2d 662, 664, 522 N.Y.S.2d 238).   Even where a delay can be considered a suspect circumstance, “it is not necessary to conclude that the delay in and of itself required the suppression of the statement” (see, People v. DeJesus, 63 A.D.2d 148, 154, 407 N.Y.S.2d 5;  see also, People v. Boardman, 150 A.D.2d 706, 541 N.Y.S.2d 580, citing People v. Dairsaw, supra).   Thus, on many occasions, this court has found statements to be voluntary despite delays in arraigning a defendant, even where the delay has been as great as 37 hours (see, People v. Quartieri, 171 A.D.2d 889, 891-892, 567 N.Y.S.2d 815;  People v. Burkett, 157 A.D.2d 792, 550 N.Y.S.2d 391;  People v. Beckham, 174 A.D.2d 748, 749, 571 N.Y.S.2d 775;  People v. Smith, 161 A.D.2d 817, 818, 556 N.Y.S.2d 378, cert. denied sub nom. Smith v. New York, 498 U.S. 1100, 111 S.Ct. 996, 112 L.Ed.2d 1079;  People v. Melendez, 160 A.D.2d 818, 819, 554 N.Y.S.2d 75).  Where, as here, the police were investigating the defendant's possible involvement in an unrelated crime, one which they were unaware of at the time of his initial arrest, a delay in arraignment was warranted (see, People v. Quartieri, supra, at 890, 567 N.Y.S.2d 815;  People v. Borazzo, 137 A.D.2d 96, 100, 528 N.Y.S.2d 99;  People v. Wilson, 133 A.D.2d 790, 791, 520 N.Y.S.2d 175).

 The defendant contends that his confession was not sufficiently attenuated from his illegal arrest.   We disagree.   Where, as here, a person who was arrested without probable cause on one charge is confronted with evidence relating to a different charge which is not the product of the illegal arrest and thereafter confesses to the second charge, the intervening event is sufficient to remove the taint of the illegal initial detention and render his confession admissible (see, People v. Rogers, 52 N.Y.2d 527, 533-534, 439 N.Y.S.2d 96, 421 N.E.2d 491, cert. denied sub nom. Rogers v. New York, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214;  People v. Jones, 151 A.D.2d 695, 695-696, 542 N.Y.S.2d 750;  People v. Leandry, 130 A.D.2d 351, 352, 515 N.Y.S.2d 11;  People v. Davis, 120 A.D.2d 606, 502 N.Y.S.2d 80).

Further, the defendant's contention that the court's Allen charge shifted the burden of proof is not preserved for appellate review (see, People v. Jackson, 76 N.Y.2d 908, 909, 563 N.Y.S.2d 42, 564 N.E.2d 652;  People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932;  People v. Thomas, 210 A.D.2d 10, 618 N.Y.S.2d 805;  People v. Marero, 208 A.D.2d 769, 617 N.Y.S.2d 780;  People v. Uraca, 195 A.D.2d 377, 600 N.Y.S.2d 458) and, in any event, is without merit (see, People v. Melendez, 205 A.D.2d 392, 613 N.Y.S.2d 395).

Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt in the trial of Indictment No. 94-01440 was not against the weight of the evidence (see, CPL 470.15[5] ).

MEMORANDUM BY THE COURT.