People v. Zeito , 753 N.Y.S.2d 914 ( 2003 )

Appeal from a judgment of Monroe County Court (Egan, J.), entered March 12, 1997, convicting defendant after a jury trial of murder in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25 [1]), defendant contends that County Court erred in failing to suppress the statement that he made to the police after receiving Miranda warnings because that statement was tainted by his earlier statement to the police that preceded the Miranda warnings. Defendant failed to raise that contention before the suppression court and thus has failed to preserve it for our review (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Defendant also failed to preserve for our review his contention that the court interfered unnecessarily during the questioning of certain witnesses, thereby depriving him of a fair trial. In any event, that contention is without merit. The record does not support defendant’s contention that the court took on “either the function or appearance of an advocate” (People v Arnold, 98 NY2d 63, 67; cf. People v De Jesus, 42 NY2d 519, 523-524). Present— Pigott, Jr., P.J., Wisner, Hurlbutt, Scudder and Lawton, JJ.