Opinion
December 19, 1988
Appeal from the County Court, Nassau County (Winick, J.).
Ordered that the judgments are affirmed.
We reject the defendant's contention that a de facto arrest occurred at the time he made statements to the police for the same reasons stated in our memorandum decision addressing his codefendant's claims (see, People v Gilyard, 145 A.D.2d 568 [decided herewith]). As a result, the trial court properly ruled that his statements would be admissible at trial.
With respect to the statement the defendant made after his arrest and the administration of Miranda warnings, we find that the detective's declarative statement "You guy's won't laugh so much. We found fingerprints at the scene" was not specifically addressed to the defendant. We further find that this statement was induced by the detective's exasperation with the joking by the defendant and his codefendant at approximately 2:30 A.M., rather than being intended or reasonably likely to elicit a response (see, People v Ferro, 63 N.Y.2d 316, 319, 322-323, cert denied 472 U.S. 1007; People v Bryant, 59 N.Y.2d 786, 788, rearg dismissed 65 N.Y.2d 638). As a result, the defendant's response "[y]ou won't find my prints I was wearing gloves" was, as the trial court properly found, a spontaneous or volunteered statement (cf., People v Huffman, 61 N.Y.2d 795, 796-797; People v Lynes, 49 N.Y.2d 286, 294-295).
The trial court properly refused to dismiss the indictment. The Assistant District Attorney properly charged the Grand Jury that they could, but were not required to, infer that the defendant participated in the crimes, or could alternatively determine he was a mere receiver of stolen goods (see, People v Baskerville, 60 N.Y.2d 374, 382; People v Galbo, 218 N.Y. 283, 290). The defendant identified some of the stolen items in the trunk as his to the police officers. This false explanation, together with his joint possession of the items in the trunk with those with whom he acted in concert, satisfied the exclusivity requirement and warranted the giving of the charge on recent and exclusive possession of the fruits of a crime (cf., People v Shurn, 69 A.D.2d 64, 69-70; People v Vaccarella, 257 App. Div. 461).
The sentence imposed was not an improvident exercise of discretion (see, People v Suitte, 90 A.D.2d 80). Mangano, J.P., Bracken, Kunzeman and Balletta, JJ., concur.