Opinion
25 KA 18–00335
06-28-2019
The PEOPLE of the State of New York, Appellant, v. Steven MORRIS, Defendant–Respondent.
PATRICK E. SWANSON, DISTRICT ATTORNEY, MAYVILLE (WENDY EVANS LEHMANN OF COUNSEL), FOR APPELLANT. ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PATRICK E. SWANSON, DISTRICT ATTORNEY, MAYVILLE (WENDY EVANS LEHMANN OF COUNSEL), FOR APPELLANT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, that part of the omnibus motion seeking to suppress defendant's statements is denied, and the matter is remitted to Chautauqua County Court for further proceedings on the indictment. Memorandum: The People appeal from an order granting that part of defendant's omnibus motion seeking to suppress certain statements that he made during the investigation of his alleged unlawful sexual contact with a three-year-old child. We agree with the People that County Court erred in suppressing defendant's oral statements made to the mother of the alleged victim during a controlled telephone call that was recorded by the police. Although it is undisputed that the mother was acting as an agent of the police when she made the controlled call (see People v. Taplin , 1 A.D.3d 1044, 1045, 767 N.Y.S.2d 541 [4th Dept. 2003], lv denied 1 N.Y.3d 635, 777 N.Y.S.2d 33, 808 N.E.2d 1292 [2004] ), we conclude that the mother "did not make a threat [or a promise] that would create a substantial risk that defendant might falsely incriminate himself" ( People v. Bradberry , 131 A.D.3d 800, 802, 16 N.Y.S.3d 97 [4th Dept. 2015], lv denied 26 N.Y.3d 1086, 23 N.Y.S.3d 643, 44 N.E.3d 941 [2015] [internal quotation marks omitted]; see CPL 60.45[2][b][i] ; see also People v. Price , 285 A.D.2d 616, 616, 728 N.Y.S.2d 378 [2d Dept. 2001], lv denied 97 N.Y.2d 708, 739 N.Y.S.2d 109, 765 N.E.2d 312 [2002] ; People v. Huntley , 259 A.D.2d 843, 845–846, 687 N.Y.S.2d 747 [3d Dept. 1999], lv denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103 [1999] ). We further conclude that the controlled call did not constitute an unconstitutionally coercive police tactic; nor were the tactics employed by the mother during the call unconstitutionally coercive (see generally CPL 60.45[2][b][ii] ; People v. Thomas , 22 N.Y.3d 629, 641–645, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ). "Police may generally engage in deception while investigating a crime" ( People v. Colbert , 60 A.D.3d 1209, 1211, 875 N.Y.S.2d 339 [3d Dept. 2009] ), and "[d]eceptive police stratagems in securing a statement ‘need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession’ " ( People v. Dishaw , 30 A.D.3d 689, 690, 816 N.Y.S.2d 235 [3d Dept. 2006], lv denied 7 N.Y.3d 787, 821 N.Y.S.2d 817, 854 N.E.2d 1281 [2006], quoting People v. Tarsia , 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188 [1980] ; see Bradberry , 131 A.D.3d at 802, 16 N.Y.S.3d 97 ). In this case, we conclude that "there was no such showing" ( Bradberry , 131 A.D.3d at 802, 16 N.Y.S.3d 97 ; cf. Thomas , 22 N.Y.3d at 645, 985 N.Y.S.2d 193, 8 N.E.3d 308 ; see generally People v. Clark , 139 A.D.3d 1368, 1369, 31 N.Y.S.3d 357 [4th Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 356, 63 N.E.3d 76 [2016] ).
We also agree with the People that the court erred in suppressing statements made by defendant during an interview with investigators from the Chautauqua County Sheriff's Office based upon a purported Miranda violation. It is well established that "both the elements of police ‘custody’ and police ‘interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda " ( People v. Huffman , 41 N.Y.2d 29, 33, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ; see People v. Hailey , 153 A.D.3d 1639, 1640, 61 N.Y.S.3d 755 [4th Dept. 2017], lv denied 30 N.Y.3d 1060, 71 N.Y.S.3d 10, 94 N.E.3d 492 [2017] ). Here, the evidence at the Huntley hearing established that the investigators subjected defendant to interrogation. Contrary to the court's conclusion, however, the evidence also established that defendant was not in custody when he made the statements.
"The standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" ( People v. Paulman , 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] ). The test is "not what the defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position" ( People v. Figueroa , 156 A.D.3d 1348, 1348, 68 N.Y.S.3d 290 [4th Dept. 2017], lv denied 31 N.Y.3d 1013, 78 N.Y.S.3d 283, 102 N.E.3d 1064 [2018] [internal quotation marks omitted]; see People v. Yukl , 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ). In this case, although defendant's interview occurred at the Sheriff's Office, that fact "does not necessarily mean that he is to be considered ‘in custody’ " ( Yukl , 25 N.Y.2d at 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 ). Defendant voluntarily agreed to meet the investigators at the Sheriff's Office and arranged for his own transportation to and from the interview (see People v. Eriksen , 145 A.D.3d 1110, 1111–1112, 43 N.Y.S.3d 546 [3d Dept. 2016], lv denied 28 N.Y.3d 1183, 52 N.Y.S.3d 710, 75 N.E.3d 102 [2017] ; People v. Drennan , 81 A.D.3d 1279, 1279, 916 N.Y.S.2d 443 [4th Dept. 2011], lv denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 [2011], reconsideration denied 17 N.Y.3d 816, 929 N.Y.S.2d 804, 954 N.E.2d 95 [2011] ). When defendant arrived, the investigators informed him that he was free to leave (see People v. Vargas , 109 A.D.3d 1143, 1143, 971 N.Y.S.2d 624 [4th Dept. 2013], lv. denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 [2013] ; People v. Weakfall , 108 A.D.3d 1115, 1115–1116, 969 N.Y.S.2d 655 [4th Dept. 2013], lv denied 21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152 [2013] ). In fact, defendant left the Sheriff's Office at the conclusion of the interview despite making inculpatory statements. Further, defendant was not restrained during the interview, and the door to the interview room was unlocked (see People v. Cade , 110 A.D.3d 1238, 1239, 973 N.Y.S.2d 432 [3d Dept. 2013], lv denied 22 N.Y.3d 1155, 984 N.Y.S.2d 638, 7 N.E.3d 1126 [2014] ; Weakfall , 108 A.D.3d at 1115–1116, 969 N.Y.S.2d 655 ). Although the investigators confronted defendant with the statements that he made during the controlled call, the fact that the questioning may have turned accusatory in nature did not render the interview custodial given the other circumstances present in this case (see People v. Brown, 153 A.D.3d 1664, 1665, 61 N.Y.S.3d 762 [4th Dept. 2017], lv denied 30 N.Y.3d 1103, 77 N.Y.S.3d 2, 101 N.E.3d 388 [2018] ; People v. Hernandez, 25 A.D.3d 377, 378, 806 N.Y.S.2d 589 [1st Dept. 2006], lv denied 6 N.Y.3d 834, 814 N.Y.S.2d 82, 847 N.E.2d 379 [2006] ).