Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered June 9, 1998, upon a verdict convicting defendant of the crimes of assault in the first degree (five counts) and endangering the welfare оf a child (two counts).
After a trial, a jury found defendant guilty as charged of five
It was subsequently determined that Baby M had suffered skull fractures and life-threatening brain injuries, and had extensive bone fractures to nearly every part of his body, some of which were acute, i.e., occurring within the previous 24 to 48 hours, and others were found to be subacute, i.e., in varying stages of healing. It was also determined that he had suffered permanent brain damage. An examination of Baby L also revealed many fractures throughout his body, which injuries were determined to have been sustained during multiple episodes of abuse.
The police finally located defendant at а neighbor’s home later that afternoon. Defendant agreed to accompany them to the station to answer questions concerning Baby M; during the interview, defendant initially denied knowing what happened to Baby M but acknowledged he had been home alone with him that day. Upon further questioning, defendant made several incriminating statements, which included the admission that he liked to hear the babiеs cry because it made him feel more loved. After defendant was advised of his Miranda rights and the seriousness of Baby M’s injuries, he stated that he did not know how that could happen but asked, “If I said I did this, what will happen to me?” Later, when defendant was advised
Following a Huntley hearing, County Court ruled that all of defendant’s statements were admissible. Upon his convictions for these crimes, defendant was sentenced as a second felony offender to determinate terms of imprisonment of 25 years on each of the five counts оf assault in the first degree (counts 1 through 5), which are to run concurrently except that the sentences for count 1 (pertaining to Baby M) and count 4 (pertaining to Baby L) are to run consecutively. He wаs also sentenced to one year in jail on counts 6 and 7, to be served concurrently with the sentences on counts 2, 3 and 5. Defendant appeals.
We affirm. Initially, defendant contends that the evidence at trial was legally insufficient because there was no medical evidence that the manner in which the injuries alleged in counts 2 through 5 were inflicted created a “grave risk of death” (see, Pеnal Law § 120.10 [3]). In view of defendant’s failure to adequately preserve this issue, we decline to consider it as part of our review (see, People v Gray,
Defendant’s contention that the evidence was legally insufficient to establish that he was the perpetrator of injuries sustained by Baby M prior to September 22, 1997 (i.e., counts 2 and 3), or that defendant caused any of Baby L’s injuries
Next, as to defendant’s contentions that these seven convictions are against the weight of the evidence on the theory that the trial evidence supports the alternate finding that the babies’ mother, and not defendant, committed these crimes, we cannot agree. Viewing the evidence in a neutral light— particularly defendant’s admissions pertaining to the September 22, 1997 infliction of life-threatening injuries on Baby M and his repeated statements that their mother would not have hurt them — and giving due deference to the jury’s resolution of credibility issues, we perceive no failure on its part to accord the evidence presented its proper or deserving weight (see, People v Bleakley, supra, at 495; see also, People v Rose,
Defendant next challenges County Court’s ruling denying supprеssion of his statements. Initially, his assertion that the interrogating police officers failed to scrupulously honor his invocation of his right to remain silent is belied by the testimony adduced at the Huntley hearing. That testimоny reveals that defendant voluntarily accompanied police to the station where he answered questions for about 45 minutes about Baby M and made statements which were generally exculpatory; defendant then agreed to give a written statement. While one officer was out of the room he told another officer he liked to hear the children cry; when the officer returned
Further, the fact that defendant sporadically sat silent and did not respond when certain specific questions were posed to him by the interviewing police officer while freely responding to other questioning did not, in this context, constitute an unqualified invocation of defendant’s right to remain silent so as to require termination of the interrogation or suppression of defendant’s subsequеnt statements (see, People v Morton,
However, we agree with defendant’s assertion that Cоunty Court erred in permitting the People at trial — over defendant’s objection-^-to elicit testimony from the interviewing police officers that during their interrogation of defendant he remained silent when certain questions were posed. This testimony included the specific incriminating questions posed to defen
Despite this unfortunate error, we nonetheless conclude that the еvidence of defendant’s guilt was indeed overwhelming and that the error was not of sufficient magnitude under the circumstances to deny defendant a fair trial (see, People v Crimmins,
Defendant’s remaining contentions have been reviewed and dеtermined to be either unpreserved for our review or without merit.
Cardona, P. J., Yesawich Jr., Carpinello and Graffeo, JJ., concur. Ordered that the judgment is affirmed.
Notes
. Count 1 charged defendant with assaulting Baby M on Sеptember 22, 1997, while counts 2 and 3 charged defendant with assaulting him one week and three weeks prior to that date, respectively. Counts 4 and 5 charged defendant with assaulting Baby L one week and threе weeks prior to that date, respectively.
. Notably, defendant suggests that this Court’s holding in People v Murphy (