People v. Wells

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Balbach, J.), rendered November 19, 1982, convicting him of murder in the second degree, attempted robbery in the first degree (two counts), criminal possession of a weapon in the second degree and criminal use of firearm in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Naro, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements made by him to law enforcement officials.

Ordered that the judgment is affirmed.

According to the testimony of the arresting detective, he and other detectives seeking to arrest the defendant as an accomplice to the murder of a cook in a Chinese restaurant, committed in the course of an attempted robbery, were admitted into the brownstone building where the defendant lived by his landlady, who lived downstairs. The detectives proceeded up the inside stairway to the second floor where the defendant’s wife answered their knock on his apartment door. The detectives asked to speak to the defendant who was awakened by his wife and came out into the hallway in his bathrobe. In the hallway, the detectives told the defendant that they had information that he was the driver of the car used in the commission of a crime and that they wanted to question him at the precinct. The defendant asked if he could get dressed and the detectives accompanied him inside his apartment while he did so. At the precinct, after being advised of his rights pursuant to Miranda v Arizona (384 US 436), the defendant made inculpatory statements to both the detectives and an Assistant District Attorney which he subsequently sought to suppress as evidence against him.

The defendant and his wife both testified at the suppression hearing that the detectives entered their apartment uninvited *709and with guns drawn, which, if true, would have violated his right to be secure in his home from warrantless arrest absent exigent circumstances or consent (see, Payton v New York, 445 US 573). The hearing court, however, credited the police testimony to the effect that the defendant consented to their entry into his apartment after they conversed with him in the hallway. Although the defendant further argued that the hallway of his building was his "home” and he did not consent to the entry of the detectives into the hallway, the hearing testimony established that the defendant’s landlady admitted the police. Clearly the landlady possessed sufficient authority and control over the premises to effectively consent to the detectives’ entry (see, People v Cosme, 48 NY2d 286, 290). Suppression of the defendants’ statements was, therefore, properly denied, as those statements were not the product of any illegal police conduct.

The defendant complains for the first time on appeal about certain portions of the court’s charge. In the absence of an exception prior to deliberations, these claims of error are unpreserved for appellate review (see, CPL 470.05 [2]), and we decline to address them in the interest of justice.

Lastly, we reject the defendant’s claim that the admission in evidence of a shotgun linked to the murder at the Chinese restaurant was erroneous. The shotgun was relevant evidence and its relevance was not outweighed by its potential for prejudice. Even if its admission were erroneous, the error would have been harmless in light of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230; cf., People v Capella, 111 AD2d 179). Mangano, J. P., Rubin and Spatt, JJ., concur.