PEOPLE v. STRONG

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Willie R. STRONG, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., GORSKI, SMITH, PINE, AND LAWTON, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Robert P. Rickert of Counsel), for Defendant-Appellant. Willie R. Strong, Defendant-Appellant Pro Se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him of sexual abuse in the first degree (Penal Law § 130.65[1] ), defendant contends that Supreme Court erred in failing to suppress his written statement.   We reject that contention.   Defendant made the statement four hours after his illegal arrest and following two sets of Miranda warnings and two pronounced breaks in the interrogation.   We therefore conclude that the statement was not “obtained by exploitation of the illegal arrest” and was sufficiently attenuated from the illegal arrest (People v. Conyers, 68 N.Y.2d 982, 983, 510 N.Y.S.2d 552, 503 N.E.2d 108;  cf. People v. Harris, 77 N.Y.2d 434, 440-441, 568 N.Y.S.2d 702, 570 N.E.2d 1051;  People v. Johnson, 277 A.D.2d 875, 716 N.Y.S.2d 493, lv. denied 96 N.Y.2d 831, 729 N.Y.S.2d 451, 754 N.E.2d 211).   We further conclude that the court did not abuse its discretion in admitting the tape of the 911 telephone call in evidence as an excited utterance (see People v. O'Connor, 242 A.D.2d 908, 911, 662 N.Y.S.2d 951, lv. denied 91 N.Y.2d 895, 669 N.Y.S.2d 9, 691 N.E.2d 1035;  see generally People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402;  People v. Edwards, 47 N.Y.2d 493, 496-497, 419 N.Y.S.2d 45, 392 N.E.2d 1229).

 Defendant failed to preserve for our review his contention in his pro se supplemental brief that reversal is warranted based on an alleged Batson violation (see People v. Latimer, 278 A.D.2d 863, 718 N.Y.S.2d 692, lv. denied 96 N.Y.2d 785, 725 N.Y.S.2d 649, 749 N.E.2d 218), the only contention explicitly set forth in the pro se supplemental brief.   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   To the extent that the pro se supplemental brief may be read as raising additional issues, we note that defendant failed to preserve for our review his apparent challenge to the court's inquiry of the jurors concerning the fact that a newspaper in the jury room mentioned the case on trial before them (see People v. Privott, 133 A.D.2d 528, 520 N.Y.S.2d 90, lv. denied 70 N.Y.2d 936, 524 N.Y.S.2d 688, 519 N.E.2d 634).   Also contrary to defendant's apparent contention, the indictment was voted by a single grand jury that heard evidence on two dates, and defendant failed to preserve for our review his apparent additional challenge to the grand jury proceedings (see People v. Gunney, 13 A.D.3d 980, 984, 787 N.Y.S.2d 483).   Finally, with respect to the two remaining apparent contentions in the pro se supplemental brief, the contention that a witness was coached by a spectator during the trial “cannot be addressed on direct appeal from the judgment because it involves matters dehors the record” (People v. Thayer, 210 A.D.2d 977, 977, 621 N.Y.S.2d 985), and defendant is not entitled to reversal of the judgment based on the fact that no preliminary hearing was held (see CPL 180.80;  People v. Bensching, 117 A.D.2d 971, 972, 499 N.Y.S.2d 522, lv. denied 67 N.Y.2d 939, 502 N.Y.S.2d 1031, 494 N.E.2d 116).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: