Opinion
Argued March 22, 2001.
April 16, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered September 23, 1998, convicting him of murder in the second degree, burglary in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Richard A. Mastrocola of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Donna Aldea of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, HOWARD MILLER, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
A claimed deprivation of the State constitutional right to counsel may be raised on appeal notwithstanding that the issue was not preserved for appellate review by having been specifically raised in a suppression motion or at trial (see, People v. Samuels, 49 N.Y.2d 218, 221).
This rule, however, does not dispense with the requirement of a sufficient factual record to permit appellate review (see, People v. Kinchen, 60 N.Y.2d 772, 773-774). By failing to raise this issue at his pretrial suppression hearing, and by failing to move to reopen that hearing based on any trial testimony, the defendant has not presented a factual record sufficient to permit appellate review of his claim that the police deliberately delayed his arraignment so that they could obtain an uncounseled confession.
The court providently exercised its discretion in determining which portions of the psychiatric records of one of the People's witnesses were admissible (see, Mental Hygiene Law § 33.13[c]; People v. Gissendanner, 48 N.Y.2d 543, 550; People v. Arnold, 177 A.D.2d 633, 634).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., FLORIO, H. MILLER and SCHMIDT, JJ., concur.