People v. Albert , 98 A.D.2d 725 ( 1983 )

— Appeal by defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered July 5, 1979, convicting him of sexual abuse in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of defendant’s omnibus motion as sought suppression of certain statements made by him to the police. Judgment affirmed. In an omnibus motion seeking, inter alia, suppression of statements made by him to the police, defendant alleged that he was not properly advised of his Miranda rights, and that, therefore, the statements were involuntary. At the hearing held thereon, defense counsel noted that the sole issue before the court was the voluntariness of the statements and he argued that they were rendered involuntary by virtue of defendant’s state of intoxication at the time of his arrest. The decision of the hearing court makes clear as well that defendant’s only basis for seeking suppression of his statements was that they were involuntary. Defendant now argues, for the first time, that his statements should be suppressed as a result of the People’s failure to prove that there was probable cause for his arrest, citing Dunaway v New York (442 US 200). In cases such as this, where a determination on a motion to suppress was made by nisi prius prior to Dunaway, this court has applied the principle oí Dunaway to the case on direct appeal, provided the issue was raised in some manner at nisi prius. If no Fourth Amendment issue was effectively raised at that time, any argument with respect thereto, including Dunaway, is deemed waived (see People v Cappiello, 85 AD2d 608, 609). Accordingly, under the circumstances at bar, defendant’s argument regarding Dunaway must be considered waived. Mollen, P. J., Weinstein, Brown and Boyers, JJ., concur.