Opinion
2012-04-24
The PEOPLE, etc., respondent, v. Dino SOLORZANO, appellant.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Donna Aldea of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Donna Aldea of counsel), for respondent.
, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered May 21, 2009, convicting him of assault in the first degree, assault in the second degree (two counts), and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (O'Dwyer, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. The defendant's claim that his statements should have been suppressed based upon the delay in his arraignment is without merit. “An unnecessary delay in an arraignment, without more, does not cause the accused's right to counsel to attach automatically, and such a delay is only one factor to consider in assessing the voluntariness of a confession” ( People v. Williams, 297 A.D.2d 325, 325, 746 N.Y.S.2d 175;see People v. Bryan, 43 A.D.3d 447, 842 N.Y.S.2d 29;People v. Beale, 283 A.D.2d 653, 728 N.Y.S.2d 161). To suppress a statement on this ground, there must be evidence that the delay was for the purpose of depriving the defendant of the right to counsel and obtaining an involuntary confession ( see People v. Jackson, 292 A.D.2d 466, 738 N.Y.S.2d 880), and that this delay was strategically designed so that an accused could be questioned outside the presence of counsel ( see People v. Faison, 265 A.D.2d 422, 697 N.Y.S.2d 296).
Here, there is no evidence that the delay was for these purposes. Rather, the evidence demonstrates that the defendant's statements were freely and voluntarily given after the defendant was apprised of and acknowledged his right to counsel. Thus, considering the totality of the circumstances, the defendant's statements were voluntarily made ( see People v. Bryan, 43 A.D.3d 447, 842 N.Y.S.2d 29;People v. Blackmon, 19 A.D.3d 611, 612, 797 N.Y.S.2d 127).
The defendant's remaining contention is unpreserved, and we decline to review it in the exercise of our interest of justice jurisdiction ( see People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387;People v. Gerrara, 88 A.D.3d 811, 812, 930 N.Y.S.2d 646).