Opinion
November 13, 1989
Appeal from the Supreme Court, Queens County (Leahy, J.).
Ordered that the judgment is affirmed.
The defendant's contention that his statement to law enforcement officials should have been suppressed as the fruit of an unlawful arrest is without merit. The evidence amply supports the hearing court's determination that the defendant voluntarily accompanied the detectives to the 107th Precinct and remained free to leave until probable cause to arrest existed (see, People v Yukl, 25 N.Y.2d 585). At that point he was given the Miranda warnings and voluntarily waived his rights. Thus the statement subsequently made by him was properly admitted into evidence.
This court has already determined upon the defendant's sister's appeal that the admission into evidence of the codefendant Biggerstaff's confession at the joint trial at which Biggerstaff did not testify constituted error under the principles enunciated in Bruton v United States ( 391 U.S. 123) and Cruz v New York ( 481 U.S. 186); (People v Poywing, 150 A.D.2d 810). However, unlike the situation with respect to the defendant's sister, the evidence of his guilt was overwhelming and there exists no reasonable possibility that the jury would have acquitted him but for the admission of Biggerstaff's confession. Accordingly, we find that with respect to the defendant this error was harmless beyond a reasonable doubt (see, People v DiNicolantonio, 140 A.D.2d 44, affd 74 N.Y.2d 856, on opn of Spatt, J., at App. Div.; People v Hamlin, 71 N.Y.2d 750; People v Mistretta, 147 A.D.2d 661).
Finally, the defendant's contention that the trial court erred in failing to give an accomplice charge (see, CPL 60.22) with respect to the testimony of Eujenee Poywing and Kim Polite is unpreserved for appellate review (see, People v Calandro, 127 A.D.2d 675), and we conclude that reversal in the interest of justice is not warranted (see, People v Brooks, 34 N.Y.2d 475; People v Cefaro, 21 N.Y.2d 252; cf., People v Diaz, 19 N.Y.2d 547; People v Ramos, 68 A.D.2d 748).
We have considered the defendant's remaining contentions and find them to be without merit. Brown, J.P., Lawrence, Eiber and Spatt, JJ., concur.