Opinion
June 9, 1998
Appeal from the Supreme Court, New York County (Harold Rothwax, J., at suppression hearing; Renee White, J., at jury trial and sentence).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Given the jury's credibility determinations and evaluation of expert testimony, which we see no reason to disturb, there was overwhelming circumstantial evidence of guilt. The three month old child was healthy when left alone in defendants sole care and the medical experts unanimously concluded that it became injured as a result of shaken baby syndrome. Defendants brutal conduct constituted the kind of recklessness involving a depraved indifference to human life ( People v. Cole, 85 N.Y.2d 990, 992; People v. Jones, 236 A.D.2d 217, lv denied 89 N.Y.2d 1036; People v. Nix, 173 A.D.2d 285, lv denied 78 N.Y.2d 971).
The limitations placed on defense counsels cross-examination of a detective at the suppression hearing were proper exercises of discretion in light of the repetitive and irrelevant nature of the questions posed ( see, People v. DeJohn, 239 A.D.2d 184, lv denied 90 N.Y.2d 904). Suppression was properly denied since the record supports the courts conclusion that defendant voluntarily accompanied the police to the precinct after his daughter was found in a coma and that he was not in custody when he made statements to the police. This was established by the fact that he left the precinct at the conclusion of his statement.
Defendant has failed to preserve his challenges to the prosecutors opening statement and summation and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks do not warrant reversal ( see, People v. D'Alessandro, 184 A.D.2d 114, lv denied 81 N.Y.2d 884).
We perceive no abuse of sentencing discretion.
Concur — Sullivan, J. P., Rosenberger, Wallach and Andrias, JJ.