Opinion
November 29, 1994
Appeal from the Supreme Court, Bronx County (William Wallace, J.).
No reason exists to disturb the hearing court's finding that defendant's warned statements were neither influenced by his earlier unwarned statements, there having been a definite and pronounced break of almost 24 hours between the two interrogations (see, People v. Chapple, 38 N.Y.2d 112, 115), nor the result of the "`cat [being] out of the bag'" (supra, at 114). Nor did the sentencing court abuse its discretion in refusing to allow defendant to withdraw his guilty plea based upon his bare assertion of innocence (People v. Brown, 142 A.D.2d 683; People v. Pettway, 140 A.D.2d 721, lv denied 72 N.Y.2d 922), or his fear that his criminal history would necessarily lead to a conviction (People v. Parker, 85 A.D.2d 565; People v. Yarber, 122 A.D.2d 433). Defendant's challenge to the sufficiency of his allocution is not preserved as a matter of law, and we decline to review it in the interest of justice. Defendant's claim based on Payton v. New York ( 445 U.S. 573) is also not preserved as a matter of law, and cannot be reviewed in the interest of justice since no record was made as to whether defendant had a legitimate expectation of privacy in the apartment where he was arrested. We have reviewed the defendant's claim that the sentence imposed was excessive and find it to be meritless.
Reargument granted and, upon reargument, the unpublished decision and order of this Court entered on January 27, 1994 (Appeal No. 50936) is recalled and vacated and a new decision and order decided simultaneously herewith.
Concur — Murphy, P.J., Rosenberger, Ross, Rubin and Williams, JJ.