Brief on Appeal


118 A.D.2d 731, 500 N.Y.S.2d 63

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent,
v.
Richard Clayton JACKSON, Appellant.

March 17, 1986.

Lawrence J. Gross, Elmhurst (Richard M. Hartzman, of counsel), for appellant. John J. Santucci, Dist. Atty., Kew Gardens (Alexander P. Schlinger, of counsel), for respondent.

Before GIBBONS, J.P., and BRACKEN, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Chetta, J.), rendered November 10, 1982, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial (Groh, J.), after a hearing, of that branch of the defendant’s omnibus motion which sought the suppression of certain statements.

Judgment affirmed.

The finding by the hearing court that the defendant gave both his oral statement to the arresting officer and his taped confession to an assistant district attorney after separate, valid waivers of his Miranda rights was amply supported by the record. Although the arresting officer did not consent to the defendant’s request to speak with his wife during the stationhouse interrogation, in the absence of evidence that the police forbade the defendant to speak with his wife in an effort to bar the defendant’s exercise of his right to counsel and to obtain a confession, there was no infringement of the defendant’s rights (see, People v. Fuschino, 59 N.Y.2d 91, 100, 463 N.Y.S.2d 394, 450 N.E.2d 200).

The defendant’s failure to pursue the issue of the existence of probable cause for his arrest at the hearing as evidenced by his failure to cross-examine the arresting officer as to the probable cause basis for his arrest, failure to mention the issue in his closing statement, and his failure to object when the hearing court’s decision did not address the issue, constitutes a failure to preserve the issue as a matter of law (see, People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363; People v. Smith, 108 A.D.2d 763, 484 N.Y.S.2d 920).

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