Opinion
2000-02957
Submitted May 10, 2002.
June 10, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered March 20, 2000, convicting him of assault in the first degree, robbery in the first degree (two counts), robbery in the second degree, criminal possession of a weapon in the second degree (two counts), and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Katz, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
Robert DiDio, Kew Gardens, N.Y. for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N Y (John M. Castellano, Johnnette Traill, and Jerry Marti of counsel), for respondent.
Before: SONDRA MILLER, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the trial court correctly permitted testimony regarding statements made by the complainant after being shot, in which he identified the defendant as his assailant, and indicated that the gun found underneath his body belonged to the defendant. The statements were made within minutes after the complainant was shot six times. The circumstances surrounding the making of the statements reasonably justified the trial court's conclusion that they were not made under the impetus of studied reflection. Therefore, the statements were admissible under the excited utterance exception to the hearsay rule (see People v. Brown, 70 N.Y.2d 513, 519; People v. Edwards, 47 N.Y.2d 493; People v. Harris, 276 A.D.2d 562, 563; People v. Montalbo, 254 A.D.2d 504).
"It is well settled that whether a defendant is in police custody and therefore not free to leave is not determined by the individual defendant's subjective beliefs. Rather, the test is whether a reasonable person, innocent of any crime, would have believed he [or she] was free to leave the presence of the police" (People v. Ellerbe, 265 A.D.2d 569, 570; see People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851; People v. Portier, 276 A.D.2d 500). Under the totality of the circumstances surrounding the defendant's statement made at the hospital where he was admitted with a gunshot wound, the defendant, who was not handcuffed, was not in custody when a detective asked him what happened. Moreover, the nature of the question was investigatory (see People v. Centano, 76 N.Y.2d 837; People v. Ellerbe, supra at 570; see also People v. Yukl, supra; People v. Portier, supra; People v. King, 222 A.D.2d 699; People v. Mosley, 196 A.D.2d 893; People v. Forbes, 182 A.D.2d 829, 830). Thus, the hearing court correctly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
Prior to the in-court identification of the defendant by a prosecution witness, that witness observed the defendant both outside and inside the courtroom. The defendant's counsel made an application to preclude the witness's in-court identification on the ground that the witness was permitted to improperly observe the defendant immediately before his testimony, thereby rendering the in-court identification suggestive. The trial court denied the application and permitted the witness to make an in-court identification of the defendant. The trial court's ruling was correct. The out-of-court observations of the defendant, both in the hallway of the courthouse and in the courtroom, were accidental in nature and not the product of questionable police procedure (see People v. O'Quinn, 268 A.D.2d 602; People v. Marino, 245 A.D.2d 529). While it was improper for the prosecutor to bring the witness into the courtroom before he was called to testify, thereby observing the defendant, this error was harmless and did not require the preclusion of the witness' in-court identification. Any perceived suggestiveness of the in-court identification was cured since the People proved by clear and convincing evidence that the in-court identification was based upon the witness's independent observation of the defendant (see People v. Radcliffe, 273 A.D.2d 483, 484; People v. Webster, 248 A.D.2d 738). Moreover, any risk of misidentification at trial was diminished since the defense counsel had an opportunity to cross-examine the witness and explore the suggestiveness of the in-court identification, as well as to argue any weakness of the identification to the jury on summation (see, People v. Bradley, 154 A.D.2d 609; People v. Merced, 137 A.D.2d 562).
The defendant's remaining contentions are without merit.
S. MILLER, J.P., SCHMIDT, ADAMS and TOWNES, JJ., concur.