Opinion
March 10, 1989
Appeal from the Ontario County Court, Henry, Jr., J.
Present — Dillon, P.J., Callahan, Doerr, Pine and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that the trial court erred in denying his motion to suppress his inculpatory statement. Defendant was present when the police, pursuant to a warrant, searched his residence. The People admit, as found by the suppression court, that defendant was in custody prior to his statement and had invoked his right to counsel. Further, no Miranda warnings had been given defendant.
It was developed at the hearing that two police investigators were with defendant in his bedroom when one of the investigators found a small canister containing what appeared to be a small amount of cocaine hidden in the headboard of a bed. The investigator exclaimed, "Look what we have here. It looks like this may be over." This declaration was not directed at defendant. Upon hearing this statement, defendant shrugged his shoulders and stated, "You found my stash." The suppression court in denying defendant's motion found that the officer's statement was purely declaratory, required no response from defendant and was not reasonably likely to elicit an incriminating response. We agree.
Because defendant had invoked his right to counsel, his statement must be suppressed, unless it was spontaneous (see, People v. Rivers, 56 N.Y.2d 476, 479; People v. Lynes, 49 N.Y.2d 286, 293-295). A statement is not spontaneous, of course, if it results from direct questioning, or its functional equivalent, which is defined as "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response" (Rhode Is. v. Innis, 446 U.S. 291, 302; see, People v. Ferro, 63 N.Y.2d 316, 322-323, cert denied 472 U.S. 1007). Since the officer's declaratory statement did not constitute direct questioning, or its functional equivalent, defendant's suppression motion was properly denied (see, People v. Huffman, 61 N.Y.2d 795).
We have reviewed defendant's remaining contentions and find them to be without merit.