Opinion
KA 00-02279
November 15, 2002.
Appeal from a judgment of Monroe County Court (Connell, J.), entered March 20, 2000, convicting defendant after a jury trial of, inter alia, murder in the second degree.
ZIMMERMAN TYO, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR DEFENDANT-APPELLANT.
LEON DAVIS, DEFENDANT-APPELLANT PRO SE.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HAYES, HURLBUTT, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
County Court properly denied the motion of defendant to suppress his statements to the police. The record of the suppression hearing supports the court's determination that the statements were voluntarily made ( see People v. Miles, 276 A.D.2d 566, lv denied 96 N.Y.2d 737), and defendant may not rely upon trial testimony to challenge the suppression ruling on appeal ( see People v. Diaz, 194 A.D.2d 688, 689, lv denied 82 N.Y.2d 893). Defendant failed to preserve for our review his contention that his conviction of depraved indifference murder (Penal Law § 125.25) is not supported by legally sufficient evidence ( see People v. Gray, 86 N.Y.2d 10, 19), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Upon our review of the record, we conclude that the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). The sentence is not unduly harsh or severe.