Appeal from a judgment of the Supreme Court (Teresi, J.), rendered August 25, 2005 in Albany County, upon a verdict convicting defendant of the crime of murder in the second degree.
At approximately noon on Octоber 6, 2004, a neighbor discovered Timothy Gray, who was unconscious, badly beaten and in a pool of blood, in the backyard of Gray’s residence in the Town of Bethlehem, Albany County. Subsequent investigation indicatеd that Gray had been attacked the evening of October 5, 2004 when Gray’s housemates, including his girlfriend, Jessica Domery, had been working out of the area. Defendant was identified by police as a person of interest since he had recently dated Domery and, when she terminated that relationship, defendant had engaged in a series of actions aimed at intimidating and harassing Domery and Gray, including an earlier physical altercation with Gray. On October 7, 2004, defendant accompanied a member of the Town of Bethlehem police department to the police station, where he was informed of his Miranda rights, told he was not under arrest, then questioned for about four hours by detectives Charles Rudolph and Christopher Bowdish. He denied involvement in the crime, permitted police to search his car аnd agreed to return the following day to take a polygraph examination at a City of Albany police station.
On October 8, 2004, defendant was administered his Miranda rights and then began a polygraph examination, which he terminated part way into thе process. According to Bowdish and Rudolph, shortly thereafter he told them, “I did it.” While still at the Albany police station, Miranda rights were reread to defendant and he then gave a detailed written statement in which, аmong other things, he admitted punching Gray, kicking him in the face, striking him in the head and face with a wooden replica hatchet, and leaving a note written in Italian (which he had made using a translation Web site on a computer in a public library) in an effort to detract suspicion. Such a note had been discovered at the premises. Defendant also drew a map of the crime scene. Defendant was placed in custody and taken back to the Bethlehem police station for booking, where he was again given Miranda warnings. When he expressed remorse about the incident, Bowdish suggested that he write a letter of apology
In the meantime, on October 10, 2004, Gray died of the injuries sustained in the attack. Defendant was indicted on two counts of murder. A combined Huntley-Mapp-Dunaway hearing was conducted, after which County Cоurt (Herrick, J.) denied defendant’s motion to suppress his various statements with the exception of a portion of his statement to the correction officer and, as to that statement, the initial statement that the officer overheard was permitted and the statements thereafter when the officer engaged defendant in a conversation were suppressed. Following a jury trial, defendant wаs convicted of one count of intentional murder in the second degree and sentenced to a prison term of 25 years to life. Defendant appeals alleging that his written statement should have been suppressed as involuntary and the fruit of an unlawful arrest, his apology letter should not have been admitted into evidence since part of it was written after his right to counsel had attached, аnd the prosecutor made comments in summation that deprived him of a fair trial.
We consider first defendant’s contention that his written statement should have been suppressed as involuntary and unreliable. The issue of the voluntariness of a statement is a factual question determined by the totality of the circumstances (see People v May,
Here, on the first day of questioning, defendant agreed to go to the police station. He was given Miranda warnings and elected to talk with the police. He was interviewed by detectives for about four hours and thereafter was permitted to leave. He
Nor do we find merit in defendant’s argument that his written statement was the fruit of an unlawful arrest. Although defendant denied at trial that he verbally told the detectives following the polygraph that he had attacked Gray, the detectives’ testimony at the suppression hearing (which the suppressiоn court found credible) and at the trial was to the contrary. There is no reason in this record to reject the detectives’ testimony that defendant made the oral admission. Defendant’s oral statеment provided probable cause to place him in custody and, accordingly, his written statement was not the fruit of an unlawful arrest (see generally People v Bell,
Defendant further contends that his apology letter to Domery should not have been admitted into evidence since it was obtained in violation of his right to counsel. This contention is premised upon proof elicited at trial that the last part of the letter was written after arraignment.
Turning to the merits of the argument, it is well settled that the state constitutional right to counsel attaches when formal judicial proceedings begin (see People v Ramos,
However, on this record, we conclude that such error was harmless. “[A] constitutional error requires a reversаl of a conviction and a new trial unless the error is harmless beyond a reasonable doubt, that is, ‘there is no reasonable possibility that the error might have contributed to defendant’s conviction’ ” (People v Smith,
Finally, we are unpersuaded by defendant’s contention that comments by the prosecutor during summation сonstituted reversible error. The following statement by the prosecutor was
Mercure, J.P., Peters, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed.
Notes
The time line of when the arraignment occurred with respect to the apology letter had not been developed at the earlier suppression hearing. The proof as to such issue at trial included portions of a videotape from the squad room where defendant wrote the letter and Bowdish’s acknowledgment at trial that defendant “finished it up” after arraignment.