PEOPLE v. DAVIS

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

Memorandum:

County Court properly denied the motion of defendant to suppress his statements to the police. The record of the suppression hearing supports the court's determination that the statements were voluntarily made ( see People v. Miles, 276 A.D.2d 566, lv denied 96 N.Y.2d 737), and defendant may not rely upon trial testimony to challenge the suppression ruling on appeal ( see People v. Diaz, 194 A.D.2d 688, 689, lv denied 82 N.Y.2d 893). Defendant failed to preserve for our review his contention that his conviction of depraved indifference murder (Penal Law § 125.25) is not supported by legally sufficient evidence ( see People v. Gray, 86 N.Y.2d 10, 19), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Upon our review of the record, we conclude that the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). The sentence is not unduly harsh or severe.