Opinion
November 9, 1987
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment is affirmed.
The defendant contends that his statement to the police should have been suppressed. However, great weight must be accorded the determination of the hearing court with its particular advantages of having seen and heard the witnesses (People v. Prochilo, 41 N.Y.2d 759, 761; People v. Yukl, 25 N.Y.2d 585, mot to amend remittitur denied 26 N.Y.2d 845, 883, cert denied 400 U.S. 851) and its determinations on the issue of credibility should not be disturbed if supported by the record (People v. Alver, 111 A.D.2d 339, 340). Here, the hearing court credited the testimony of two police officers that the defendant did not request counsel prior to making inculpatory statements and discredited the defendant's testimony that he was suffering the effects of ingesting cocaine and a consequent lack of sleep at the time he made the statement at issue. We see no reason to disturb the hearing court's determination of credibility which is supported by the record.
In addition, the hearing court determined that the defendant's statement was voluntarily given under noncustodial circumstances. Although the defendant argues that his statement should have been suppressed because the police officers knew that he had been arrested four months earlier on an unrelated criminal charge, we perceive no violation of his right to counsel because the statement was given under noncustodial circumstances (see, People v. Bertolo, 65 N.Y.2d 111, 116; People v. Torres, 97 A.D.2d 802). There is no basis in the record for reversing these findings (see, People v. Yukl, supra; People v. Oates, 104 A.D.2d 907; People v. Torres, supra), which are neither erroneous as a matter of law nor against the weight of the evidence (see, People v. Newson, 68 A.D.2d 377, 387).
Finally, the justification defense was properly not charged by the trial court. There is no indication in the record that the deceased was ever armed with a weapon; nor is there any evidence that the defendant actually believed that the deceased was about to use deadly force against him, or that he could not have retreated in complete safety to himself (see, People v Figueroa, 111 A.D.2d 765; People v. Pabon, 106 A.D.2d 587; People v. Alston, 104 A.D.2d 653). Niehoff, J.P., Eiber, Kunzeman and Harwood, JJ., concur.