Opinion
May 3, 1993
Appeal from the Supreme Court, Queens County (Agresta, J.).
Ordered that the judgment is affirmed.
The defendant was convicted, along with a codefendant, of the burglary of a home and the robbery of its residents. Contrary to the defendant's assertions, the evidence supports the hearing court's determination that the defendant knowingly and voluntarily waived his Miranda rights prior to making a confession to the police (see, People v Prochilo, 41 N.Y.2d 759; People v Rivera, 171 A.D.2d 708). Further, this confession was not taken in violation of the defendant's right to counsel (see, People v Bing, 76 N.Y.2d 331; People v Rogers, 48 N.Y.2d 167; People v Kazmarick, 52 N.Y.2d 322). The defendant also claims that the destruction of certain notes taken by a police officer concerning the defendant's confession was a violation of People v Rosario ( 9 N.Y.2d 286, cert denied 368 U.S. 866). However, because the defendant failed to move for a sanction in the Supreme Court or to otherwise object, this issue has not been preserved for appellate review (see, People v Hilliard, 173 A.D.2d 559, lv denied 78 N.Y.2d 1077).
Under current case law, admission of the nontestifying codefendant's statement which inculpated the defendant was a violation of the Confrontation Clause (see, Cruz v New York, 481 U.S. 186; Bruton v United States, 391 U.S. 123; People v Hamlin, 71 N.Y.2d 750). However, on the facts at bar, the error was harmless. Finally, although certain comments by the court at sentencing were offensive, they did not indicate a preconceived notion of the defendant's guilt or convey prejudice or bias (cf., People v Hayes, 127 A.D.2d 607 [affirming the codefendant's conviction]).
We have examined the defendant's remaining contentions and found them to be without merit or unpreserved for appellate review. Mangano, P.J., Thompson, Balletta and Joy, JJ., concur.