Opinion
152 KA 17–00278
06-07-2019
The PEOPLE of the State of New York, Respondent, v. Robert G. MCDONALD, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN MARGO OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN MARGO OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a bench trial of driving while ability impaired ( Vehicle and Traffic Law § 1192[1] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a][i] ). We reject defendant's contention that Supreme Court erred in refusing to suppress statements he made to the police before he received his Miranda warnings because he was subjected to custodial interrogation. The evidence at the Huntley hearing, as credited by the court (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ; People v. Moore, 295 A.D.2d 969, 969, 743 N.Y.S.2d 922 [4th Dept. 2002], lv denied 98 N.Y.2d 770, 752 N.Y.S.2d 11, 781 N.E.2d 923 [2002] ), established that a police sergeant initially observed defendant's failure to stop his vehicle at a stop sign. The sergeant followed defendant and activated the emergency lights on his police vehicle to signal to defendant to pull over. Defendant did not pull over but instead made three additional turns onto other streets without signaling. The sergeant observed defendant as he parked his vehicle in a lurching fashion, exited the vehicle, and then began walking on the sidewalk with a staggering gait. The sergeant exited his police vehicle and repeatedly commanded defendant to stop and return to his vehicle, but defendant continued walking. When the sergeant caught up to defendant, defendant stated that he was walking to a bar located approximately one block away. The sergeant noted that defendant's breath smelled of alcohol, that his eyes were glassy, bloodshot, and watery, and that his speech was slurred. The sergeant testified that he handcuffed defendant upon apprehending defendant on the sidewalk because he was uncertain why defendant had been trying to evade him and what defendant's intentions were. The sergeant walked defendant to the police vehicle and seated defendant on the back seat thereof with the door open and defendant's feet on the ground outside. The sergeant then asked defendant if he had a driver's license, where he was going, and if he had been drinking. Defendant stated that he was headed to a nearby bar and subsequently stated that he had previously consumed two drinks and that his driver's license had been revoked.
Contrary to defendant's contention, we conclude that his answers to the sergeant's questions were not the product of a custodial interrogation requiring Miranda warnings. " ‘It is well established that not every forcible detention constitutes an arrest’ " ( People v. Pruitt, 158 A.D.3d 1138, 1139, 70 N.Y.S.3d 691 [4th Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018] ) and, under the circumstances noted above, we agree with the court that the sergeant's use of handcuffs did not transform the detention into a de facto arrest. Rather, the sergeant's use of the handcuffs to effect the detention was warranted in light of the threat that defendant might take additional evasive action (see People v. Allen, 73 N.Y.2d 378, 379–380, 540 N.Y.S.2d 971, 538 N.E.2d 323 [1989] ; People v. Floyd, 158 A.D.3d 1146, 1147, 70 N.Y.S.3d 649 [4th Dept. 2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ).
We further conclude that seating defendant on the back seat of the police vehicle did not transform the sergeant's questioning into a custodial interrogation. The sergeant lawfully, although forcibly, detained defendant for investigatory purposes based on his observation of defendant committing several traffic infractions (see People v. Pealer, 89 A.D.3d 1504, 1506, 933 N.Y.S.2d 473 [4th Dept. 2011], affd 20 N.Y.3d 447, 962 N.Y.S.2d 592, 985 N.E.2d 903 [2013], cert denied 571 U.S. 846, 134 S.Ct. 105, 187 L.Ed.2d 77 [2013], rearg. denied 24 N.Y.3d 993, 997 N.Y.S.2d 105, 21 N.E.3d 556 [2014] ; see generally People v. Carver, 124 A.D.3d 1276, 1278, 999 N.Y.S.2d 632 [4th Dept. 2015], affd 27 N.Y.3d 418, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016] ). Given defendant's visible intoxication, staggering gait, and prior evasive actions, a " ‘less intrusive means of fulfilling the police investigation’ " than seating defendant partially in the police vehicle " ‘was not readily apparent’ " ( People v. Howard, 129 A.D.3d 1654, 1656, 12 N.Y.S.3d 708 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ; see People v. Williams, 73 A.D.3d 1097, 1099–1100, 905 N.Y.S.2d 185 [2d Dept. 2010], lv dismissed 15 N.Y.3d 779, 907 N.Y.S.2d 468, 933 N.E.2d 1061 [2010] ). Here, the sergeant's "action fell short of the level of intrusion upon defendant's liberty and privacy that constitutes an arrest" ( People v. Hicks, 68 N.Y.2d 234, 240, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986] ; see Howard, 129 A.D.3d at 1655–1656, 12 N.Y.S.3d 708 ). In addition, the sergeant's questions were investigatory rather than custodial in nature (see People v. Lagreca, 221 A.D.2d 1026, 1026, 634 N.Y.S.2d 286 [4th Dept. 1995], lv denied 87 N.Y.2d 923, 641 N.Y.S.2d 605, 664 N.E.2d 516 [1996] ; see also People v. Spencer, 289 A.D.2d 877, 879, 736 N.Y.S.2d 428 [3d Dept. 2001], lv denied 98 N.Y.2d 655, 745 N.Y.S.2d 514, 772 N.E.2d 617 [2002] ; People v. Swan, 277 A.D.2d 1033, 1033, 716 N.Y.S.2d 194 [4th Dept. 2000], lv denied 96 N.Y.2d 788, 725 N.Y.S.2d 652, 749 N.E.2d 221 [2001] ).
Finally, we conclude that any error in refusing to suppress the disputed statements is harmless beyond a reasonable doubt (see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; People v. Hough, 151 A.D.3d 1591, 1593, 57 N.Y.S.3d 780 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ).