Opinion
February 2, 1990
Appeal from the Erie County Court, Dillon, J.
Present — Callahan, J.P., Denman, Green, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: County Court properly refused to admit into evidence a prior consistent statement of defendant after defendant's trial testimony had been attacked as a recent fabrication. A prior consistent statement of a witness whose testimony has been attacked as a recent fabrication can be admitted only when the prior statement was made at a time when there was no motive to falsify (People v Davis, 44 N.Y.2d 269, 277; People v Sease-Bey, 111 A.D.2d 195, 196, lv denied 66 N.Y.2d 618). Here, the statement was written by defendant on March 6, 1986, two days after he was arrested on the instant charges and while he was in jail. Since the statement was made after defendant had a motive to falsify, the court properly refused to admit that self-serving statement into evidence (see, People v Davis, supra; People v Sease-Bey, supra).
The record at the suppression hearing establishes that the police advised defendant of his Miranda rights prior to questioning him. Although it does not appear that defendant expressly waived his rights, such a waiver may be inferred from defendant's conduct (see, North Carolina v Butler, 441 U.S. 369, 373; People v Morton, 116 A.D.2d 925, 926, lv denied 67 N.Y.2d 887). It is apparent that defendant understood the Miranda warnings and, with such understanding, freely chose to answer the questions asked by the police (People v Morton, supra). The police scrupulously honored defendant's right to counsel and ceased questioning him once they learned that he was on parole and after he requested to speak with an attorney. Defendant's subsequent lengthy statement was made while the police were in the hall outside the interrogation room and did not result from any police interrogation or its "`functional equivalent'" (Rhode Is. v Innis, 446 U.S. 291, 302). Under such circumstances, such spontaneous statement is admissible (see, People v Rivers, 56 N.Y.2d 476, 479, rearg denied 57 N.Y.2d 775; People v Allnutt, 148 A.D.2d 993, lv denied 74 N.Y.2d 736).
Considering the heinous nature of defendant's crimes and his lengthy prior criminal record, we do not find the imposition of consecutive sentences in this case to be harsh and excessive or an abuse of discretion.
We have examined defendant's remaining claims and find them to be without merit.