Opinion
September 4, 1997
Appeal from County Court of Broome County (Mathews, J.).
Defendant was charged in two separate indictments with the crimes of burglary in the second degree and robbery in the third degree after entering the residences of one victim on February 7, 1996 and a second victim on April 4, 1996. Defendant subsequently moved to suppress a showup identification made in connection with the February 7, 1996 incident and a statement he made to police in connection with the April 4, 1996 incident. County Court denied the motion following a hearing. Defendant thereafter pleaded guilty to the crimes charged in both indictments and was sentenced as a second felony offender to concurrent five-year determinate terms of imprisonment on the burglary counts and a concurrent three-year determinate term on the robbery count. On appeal, defendant challenges County Court's rulings on the suppression motion.
Notably, County Court specifically instructed defendant that by pleading guilty he was not waiving the right to challenge the suppression rulings.
Turning first to the February 7, 1996 incident, at approximately 7:00 A.M. the victim observed defendant during the commission of the crime and gave the police a description of him. In addition, a neighbor witnessed defendant flee from the victim's apartment and enter a nearby house. The police immediately went to that house, where they had questioned defendant the previous day. Tammy Parnell, who lived in the house with defendant, answered the door and informed the police that defendant was not there, but gave them permission to look around. When they opened the bathroom door, they found defendant, who matched the description given by the victim, and asked him to come downstairs to speak to them. Defendant complied and, when he walked out onto the front porch, he was identified by the neighbor. Shortly thereafter, defendant was identified by the victim when he saw defendant on the sidewalk with police officers.
Defendant contends that the police had no right to enter the bathroom and that, consequently, the ensuing showup identification must be suppressed as the fruits of an illegal search and seizure. We disagree. The police entry into the house, including the bathroom, was fully consensual ( see, People v Gonzalez, 237 A.D.2d 375; People v. Travis OO., 237 A.D.2d 646; People v. Brown, 234 A.D.2d 211, lv granted 89 N.Y.2d 1017; compare, People v Gonzalez, 88 N.Y.2d 289) and there is nothing to suggest that defendant was under arrest or in police custody at the time of the showup identification ( see, People v. Evans, 237 A.D.2d 458, lv denied 89 N.Y.2d 1092; People v. Smith, 236 A.D.2d 639; People v Smith, 234 A.D.2d 946, lv denied 89 N.Y.2d 1041). In addition, given that the showup identification occurred shortly after the commission of the crime, in close proximity to the location of the crime and was made spontaneously by a neighbor who witnessed defendant flee from the scene of the crime and also by the victim himself, we do not find that it was unduly suggestive ( see, People v. Duuvon, 77 N.Y.2d 541; People v. Santiago, 236 A.D.2d 229, lv denied 89 N.Y.2d 1040).
Likewise, we find no error in County Court's refusal to suppress the incriminating statement made by defendant to police regarding the April 4, 1996 incident. Prior to defendant's arrest, a police officer asked him if he had taken property from the victim and advised him that the case would not be pursued if the property was returned. Defendant denied taking the property, but after his arrest and while being transported in the patrol car, defendant volunteered to the police that he had taken the property, apparently hoping that the original offer would be honored. Inasmuch as the police did not initiate this conversation or otherwise prompt defendant to make this statement, suppression of this statement was not necessary ( see, People v. Hylton, 198 A.D.2d 301, lv denied 82 N.Y.2d 925; People v Mood, 191 A.D.2d 713, 714; People v. Sora, 176 A.D.2d 1172, 1174-1175, lv denied 79 N.Y.2d 864).
Cardona, P.J., Mercure, Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed.