Opinion
252 KA 19-00489
03-26-2021
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, 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, upon his plea of guilty, of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). Preliminarily, the People correctly concede that defendant did not validly waive his right to appeal (see People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ).
On the merits, defendant challenges Supreme Court's refusal to suppress his statement at the crime scene. Although defendant acknowledges that the police did not question or interrogate him at the scene, he asserts that his statement was nevertheless inadmissible because officers purposefully delayed removing him from the "chaotic" crime scene in the hope that he would spontaneously confess. We reject that contention. Both the United States Supreme Court and the Court of Appeals have held that " ‘[o]fficers do not interrogate a suspect simply by hoping that he will incriminate himself’ " ( People v. Doll , 21 N.Y.3d 665, 672, 975 N.Y.S.2d 721, 998 N.E.2d 384 [2013], rearg denied 22 N.Y.3d 1053, 981 N.Y.S.2d 359, 4 N.E.3d 371 [2014], cert denied 572 U.S. 1022, 134 S.Ct. 1552, 188 L.Ed.2d 568 [2014], quoting Arizona v. Mauro , 481 U.S. 520, 529, 107 S.Ct. 1931, 95 L.Ed.2d 458 [1987] ). Moreover, it is well established that police officers need not "take affirmative steps, by gag or otherwise, to prevent a talkative person in custody from making an incriminating statement" ( People v. Rivers , 56 N.Y.2d 476, 479, 453 N.Y.S.2d 156, 438 N.E.2d 862 [1982], rearg denied 57 N.Y.2d 775, 454 N.Y.S.2d 1033, 440 N.E.2d 1343 [1982] ; see People v. Krom , 61 N.Y.2d 187, 199, 473 N.Y.S.2d 139, 461 N.E.2d 276 [1984] ). Thus, the officers’ alleged failure to immediately transport defendant to the precinct did not, standing alone, amount to the functional equivalent of interrogation and thereby require the suppression of his spontaneous, pre-Miranda statement at the scene (see Doll , 21 N.Y.3d at 671-672, 975 N.Y.S.2d 721, 998 N.E.2d 384 ). Contrary to defendant's further contention, the court properly determined that his post-Miranda statements at the precinct were not involuntary (see People v. Mateo , 2 N.Y.3d 383, 413-414, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ; People v. Childres , 60 A.D.3d 1278, 1278-1279, 875 N.Y.S.2d 662 [4th Dept. 2009], lv denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 [2009] ). Finally, the period of postrelease supervision is not unduly harsh and severe.