PEOPLE v. BENJAMIN

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

The PEOPLE, etc., Respondent, v. Adam BENJAMIN, Appellant.

Decided: January 25, 1999

CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, DANIEL W. JOY and GLORIA GOLDSTEIN, JJ. M. Sue Wycoff, New York, N.Y. (Bryan Lonegan of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Robin A. Forshaw, and Kenneth V. Byrne of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered March 14, 1996, convicting him of sexual abuse in the first degree (two counts), 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 his statement to law enforcement authorities.

ORDERED that the judgment is affirmed.

 The defendant argues that the People did not meet their burden of establishing that the police officers' warrantless entry into his home was made with his consent or justified by exigent circumstances (see, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639;  People v. Levan, 62 N.Y.2d 139, 142, 476 N.Y.S.2d 101, 464 N.E.2d 469).   Assuming, arguendo, that this argument has merit, the record supports the hearing court's finding that the defendant's videotaped statement was sufficiently attenuated from his arrest (see, People v. Conyers, 68 N.Y.2d 982, 510 N.Y.S.2d 552, 503 N.E.2d 108), and therefore that branch of his motion which was to suppress this statement was properly denied.

 Although the defendant's written statement to the police was not sufficiently attenuated from his arrest (see, People v. Harris, 77 N.Y.2d 434, 440-441, 568 N.Y.S.2d 702, 570 N.E.2d 1051), the admission of this statement at trial was harmless beyond a reasonable doubt (see, People v. Flecha, 60 N.Y.2d 766, 469 N.Y.S.2d 671, 457 N.E.2d 777;  People v. Sanders, 56 N.Y.2d 51, 66-67, 451 N.Y.S.2d 30, 436 N.E.2d 480).   The content of the defendant's written statement, which was largely exculpatory (see, People v. Modeste, 247 A.D.2d 491, 667 N.Y.S.2d 946), was duplicative of his more detailed videotaped statement, which was properly introduced into evidence (see, People v. Brown, 244 A.D.2d 347, 348, 663 N.Y.S.2d 880;  People v. Nisbett, 225 A.D.2d 801, 640 N.Y.S.2d 165).   Accordingly, there is no reasonable possibility that the jury would have acquitted the defendant if his written statement had not been introduced at trial (see, People v. Flecha, supra).

MEMORANDUM BY THE COURT.

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