Opinion
February 11, 1971
Appeal from a judgment of the County Court of Greene County, rendered November 12, 1969, convicting defendant on his plea of guilty of the crime of possession of weapons and dangerous instruments and appliances in violation of subdivision 2 of section 265.05 Penal of the Penal Law. Appellant seeks review of the denial, after hearing, of his motion to suppress any statements or admissions made by him to the New York State Police on the date of his arrest (see Code Crim. Pro., § 813-g) as well as review of the dismissal of his petition for a writ of habeas corpus. At the suppression hearing, Trooper Pasin testified: that on March 15, 1969 he met Edward Gavin, a friend, twice on Route 9W; that the second time Gavin stated that he had just come from the Rendezvous Restaurant where Ruth Henley, the proprietor, had seen a Jack Seebode with a gun, it being stated also that Seebode drove a Ford with Pennsylvania plates; that he phoned Mrs. Henley who verified that a man by such name was in her establishment; that upon arrival at the Rendezvous Pasin noticed in the parking lot a Ford with such plates, against the driver's side of which a man was leaning; that, upon entering the restaurant, Mrs. Henley identified Seebode and stated he had walked in right behind Pasin and a Catskill policeman called to assist; that Pasin recognized Seebode as the man leaning against the car and asked him if he would please step outside. The police officers and defendant went to the parking area next to said automobile, that at first Seebode said it was a friend's car but then produced a registration indicating it was his vehicle, that Pasin checked the registration with the plates, that in walking around the car with a flash-light he noticed a gun on the floor of the car, that he removed the gun, found to be loaded, and then placed defendant under arrest. Seebode was then taken to a police station and given the Miranda warnings by Pasin. Asked if he wished a lawyer at that time, defendant responded negatively. Informed that if he could not afford a lawyer, one would be appointed to represent him before any questioning, if he wished, he stated he would call his own lawyer and that he understood "all these rights" and that he understood everything. Pasin further related that he was thereafter present when Investigator Mattera arrived and questioned defendant and when certain inculpatory statements were made. Defendant did not testify or offer testimony at this suppression hearing. The County Court had a right to find that the questions and answers in the parking lot concerning ownership of the automobile were not part of a custodial interrogation ( People v. Yukl, 25 N.Y.2d 585, 590) and that defendant was properly informed of his rights at the police station and that he knowingly and intelligently waived his right to remain silent (cf. People v. Leonti, 18 N.Y.2d 384, 390). While the denial of the suppression motion may be reviewed on this appeal under section 813-g of the Code of Criminal Procedure, said section does not encompass the habeas corpus dismissal, same being a special proceeding (CPLR 7001) which could have been conducted in another court. Furthermore, the judgment therein is not in the record on appeal and such application, instituted prior to indictment but decided thereafter, is now moot by reason of defendant's conviction several months later (cf. Matter of Lincoln, 202 U.S. 178, 179-180). In any event, it does not appear that the County Court's decision to dismiss the petition was erroneous ( People v. Arthurs 24 N.Y.2d 688; People v. Glover, 17 N.Y.2d 429; People v. Malinsky, 15 N.Y.2d 86, 91). Judgment affirmed. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.