PEOPLE v. DIAZ

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

The PEOPLE of the State of New York, Respondent, v. Daniel DIAZ, Defendant-Appellant.

Decided: February 18, 1999

SULLIVAN, J.P., ELLERIN, LERNER and RUBIN, JJ. Michelle Maerov, for respondent. Edwin Ira Schulman, for defendant-appellant.

Judgment, Supreme Court, Bronx County (George Covington, J.), rendered January 15, 1997, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

 The court properly exercised its discretion (see, People v. Boulware, 29 N.Y.2d 135, 324 N.Y.S.2d 30, 272 N.E.2d 538, cert. denied 405 U.S. 995, 92 S.Ct. 1269, 31 L.Ed.2d 463) in precluding defendant from referring, in his voir dire and opening statements, to his partially inculpatory but primarily self-serving statements.   At those stages of the trial, the People had not yet determined whether they would be introducing these statements on their direct case, and the statements were clearly inadmissible on defendant's case.   Defendant was not entitled to reveal these statements to the jury in advance and thereby frustrate the People's right to defer this tactical decision.

 Defendant failed to preserve his present challenges to evidence of an anonymous telephone call to the police and to a paper bag recovered from the body of the deceased containing a significant license number and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the phone call was properly admitted, with suitable limiting instructions, to complete the narrative and explain the police conduct (see, People v. Lantigua, 231 A.D.2d 437, 648 N.Y.S.2d 1, lv. denied 89 N.Y.2d 865, 653 N.Y.S.2d 288, 675 N.E.2d 1241), and that the surrounding circumstances permitted the jury to infer that the bag received in evidence was the same bag found on the body (see, People v. Mirenda, 23 N.Y.2d 439, 453-454, 297 N.Y.S.2d 532, 245 N.E.2d 194).

 The court properly exercised its discretion in limiting cross-examination of a detective concerning his investigation regarding a person claimed by defendant to be the actual murderer.   The record establishes that defendant received ample latitude to cover this subject.

We have considered and rejected defendant's remaining claims.

MEMORANDUM DECISION.