Opinion
2015-02200. Ind. No. 13-01185.
08-30-2017
The PEOPLE, etc., respondent, v. Andre JONES, appellant.
Merrick Dammar, Bronx, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (John J. Carmody and Steven A. Bender of counsel), for respondent.
Merrick Dammar, Bronx, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (John J. Carmody and Steven A. Bender of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., HECTOR D. LaSALLE, VALERIE BRATHWAITE NELSON, and LINDA CHRISTOPHER, JJ.
Appeal by the defendant from a judgment of the County Court, Westchester County (Warhit, J.), rendered February 20, 2015, convicting him of kidnapping in the second degree, robbery in the first degree (two counts), and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Neary, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
The defendant contends that the hearing court should have suppressed his statements to law enforcement officials as the product of custodial interrogation conducted without the benefit of Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ). Here, even giving deference to the hearing court's credibility determinations (see People v. Baggett, 57 A.D.3d 1093, 1094, 868 N.Y.S.2d 423 ), the court's conclusion that the defendant was not in police custody when he made his statements to the police is not supported by the record. The evidence presented at the suppression hearing established that a reasonable, innocent person would not have believed that he or she was free to leave the police station at the time the defendant made his oral statements (see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 ; People v. Reardon, 124 A.D.3d 681, 683–684, 1 N.Y.S.3d 289 ; People v. Tavares–Nunez, 87 A.D.3d 1171, 1172, 930 N.Y.S.2d 589 ; People v. Payne, 41 A.D.3d 512, 513, 838 N.Y.S.2d 123 ). Further, the hearing court erred in concluding that the defendant's inculpatory statements were admissible because they were spontaneous, and not the result of interrogation or its functional equivalent (see People v. Tavares–Nunez, 87 A.D.3d at 1172, 930 N.Y.S.2d 589 ; cf. People v. Rivers, 56 N.Y.2d 476, 453 N.Y.S.2d 156, 438 N.E.2d 862 ; People v. McClough, 135 A.D.3d 880, 23 N.Y.S.3d 365 ; People v. Davis, 32 A.D.3d 445, 821 N.Y.S.2d 217 ; People v. Harrison, 251 A.D.2d 681, 677 N.Y.S.2d 794 ; People v. Pryor, 194 A.D.2d 749, 600 N.Y.S.2d 81 ).
Although the defendant's statements, including his videotaped statement, should have been suppressed (see People v. Payne, 41 A.D.3d at 513–514, 838 N.Y.S.2d 123 ), the admission into evidence of these statements was harmless error (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). The proof of the defendant's guilt, without reference to the improperly admitted statements, was overwhelming, and there is no reasonable possibility that the jury would have acquitted him had it not been for this constitutional error (see People v. Reardon, 124 A.D.3d at 684, 1 N.Y.S.3d 289 ; People v. Tavares–Nunez, 87 A.D.3d at 1174–1175, 930 N.Y.S.2d 589 ; People v. Payne, 41 A.D.3d at 514, 838 N.Y.S.2d 123 ).
Contrary to the People's contention, the defendant preserved for appellate review his contention that the County Court, after a mid-trial hearing, improperly denied his application to suppress physical evidence consisting of his cell phone (see CPL 470.05[2] ). However, the contention is without merit (cf. People v. Giler, 148 A.D.3d 1053, 49 N.Y.S.3d 748 ; People v. Arnold, 139 A.D.3d 748, 30 N.Y.S.3d 333 ).