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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Jose L. DI LENOLA, Appellant.

Decided: December 31, 1997

Before GREEN, J.P., and LAWTON, WISNER, CALLAHAN and BOEHM, JJ. John Putney, Geneseo, for Appellant. Thomas E. Moran by Jennifer Sommers, Geneseo, for Respondent.

 Defendant was convicted after a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and tampering with physical evidence (Penal Law § 215.40[2] ).   Although defendant contends that his videotaped confession should have been suppressed, that evidence was not introduced at trial and did not contribute to defendant's conviction.   Defendant abandoned a pretrial motion to suppress evidence of a conversation with his aunt overheard by the police.   He did not obtain a judicial determination of that motion and did not object when the People presented proof of that conversation at trial, and he used the conversation as the cornerstone of his defense that he did not kill the victim intentionally.  “[C]ourts are loath to second-guess a litigant's ‘highly judgmental function’ of deciding when and to what end to assert a right or to forego reliance on it” (People v. Rodriguez, 50 N.Y.2d 553, 557-558, 429 N.Y.S.2d 631, 407 N.E.2d 475).   In any event, we reject the contention of defendant that the conversation was privileged (see, People v. Harrell, 87 A.D.2d 21, 450 N.Y.S.2d 501, affd. 59 N.Y.2d 620, 463 N.Y.S.2d 185, 449 N.E.2d 1263;  Matter of A. and M., 61 A.D.2d 426, 403 N.Y.S.2d 375).   No privilege may attach to “communications made in the presence of [a] third part[y], whose presence is known to the defendant” (People v. Harris, 57 N.Y.2d 335, 343, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803;  see, People v. Tesh, 124 A.D.2d 843, 844, 508 N.Y.S.2d 560, lv. denied 69 N.Y.2d 750, 512 N.Y.S.2d 1055, 505 N.E.2d 253).   Furthermore, the contention that admissions made during that conversation were the fruit of prior illegal police conduct was not preserved for our review by appropriate argument at the suppression hearing (see, CPL 470.05[2];  People v. Mota, 243 A.D.2d 316, 664 N.Y.S.2d 529;  People v. Brimage, 214 A.D.2d 454, 631 N.Y.S.2d 2, lv. denied 86 N.Y.2d 732, 631 N.Y.S.2d 613, 655 N.E.2d 710;  People v. Sutton, 111 A.D.2d 197, 489 N.Y.S.2d 15, lv. denied 66 N.Y.2d 768, 497 N.Y.S.2d 1042, 488 N.E.2d 128).

Defendant further contends that he was denied a fair trial by prosecutorial misconduct.   Defense counsel did not object to several instances of the alleged misconduct, thereby failing to preserve those instances for our review (see, CPL 470.05[2] ).   In any event, we conclude that none of the alleged instances of misconduct was so egregious as to have denied defendant a fair trial (see, People v. Plant, 138 A.D.2d 968, 526 N.Y.S.2d 300, lv. denied 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 59).

Judgment unanimously affirmed.


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