Appeal from a judgment of the Erie County Court (Michael E Pietruszka, J.), rendered October 31, 2011. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Erie County Court for further proceedings in accordance with the following memoran
Defendant next contends that he was denied his right to counsel when the police questioned him concerning the instant crimes while he was in custody and represented by counsel in an unrelated criminal case. We reject that contention. “Under New York’s indelible right to counsel rule, a defendant in custody in connection with a criminal matter for which he is represented by counsel may not be interrogated in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney” (People v Lopez, 16 NY3d 375, 377 [2011]). However, “[w]hen the prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge” (People v Bing, 76 NY2d 331, 344 [1990], rearg denied 76 NY2d 890 [1990]). Here, a police detective testified at the Huntley hearing that defendant had been sentenced on the unrelated criminal case before the detective questioned him regarding these crimes, and County Court therefore properly determined that the police were not precluded from questioning him regarding the instant crimes (see People v Brant, 277 AD2d 1022, 1022 [2000], lv denied 96 NY2d 756 [2001]). We reject defendant’s contention that the right to counsel lasted until at least 30 days after sentencing, to allow for the filing of a notice of appeal (see People v Colwell, 65 NY2d 883, 885 [1985]).
Defendant further contends that he was denied effective assistance of counsel because defense counsel failed to request a jury charge on the voluntariness of defendant’s statements to the police and failed to object to multiple instances of alleged prosecutorial misconduct on summation. With respect to the jury charge, we conclude that defendant failed to demonstrate the absence of a strategic or other legitimate explanation for defense counsel’s alleged error (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Sinclair, 90 AD3d 1518, 1518 [2011]). Indeed, we note that the statements of defendant to the police were exculpatory. With respect to the alleged instances of prosecutorial misconduct, we agree with the People that the
Defendant contends that the court erred in admitting in evidence a portion of a recorded jailhouse telephone call made by defendant. He contends that the taping of the telephone call without a warrant was prohibited inasmuch as, although defendant was warned that calls may be monitored or recorded, he was not expressly warned of the possible use by law enforcement of the statements made in the recorded calls. Defendant further contends that the admission of the conversation amounted to the admission of evidence of an uncharged crime. Defendant’s contentions are not preserved for our review (see CPL 470.05 [2]) and, in any event, they are without merit. An eavesdropping warrant is not required when one of the parties to the conversation consents to the eavesdropping (see People v Lasher, 58 NY2d 962, 963 [1983]; People v Wood, 299 AD2d 739, 740-741 [2002], lv denied 99 NY2d 621 [2003]), and we conclude that defendant impliedly consented to the recording here (see generally Curley v Board of Trustees of Vil. of Suffern, 213 AD2d 583, 583 [1995], appeal dismissed 87 NY2d 860 [[1995]; United States v Friedman, 300 F3d 111, 123 [2002], cert denied 538 US 981 [2003]). We further conclude that the conversation involved only the present offense, not an uncharged crime. Contrary to defendant’s further contention, the sentence is not unduly harsh or severe.
We agree with defendant, however, that the court erred in failing to rule on defendant’s renewed motion to “rule on whether the jurors who voted this indictment were present for all the testimony presented on this case” (see People v Spratley,