Opinion
March 30, 1992
Appeal from the Supreme Court, Rockland County (Nelson, J.).
Ordered that the judgment is affirmed.
The evidence adduced at the hearing demonstrated that the police approached the defendant as he was playing basketball at a high school gymnasium. Stating that they wanted to speak to him for a moment, the officers called the defendant to the sideline. One of the officers advised the defendant that he was under arrest and asked him where the clothes were that he had worn earlier that afternoon. After the defendant replied that his clothes were in a closed gym bag which was lying on the floor some 15 feet away, the officer retrieved the bag. The officers then read the defendant his Miranda rights, placed him in the patrol car, and brought him, along with the gym bag, back to headquarters. Once there the gym bag was searched and its contents itemized.
The custodial interrogation of the defendant by the arresting officer prior to advising him of his Fifth Amendment rights was patently improper (see, Miranda v Arizona, 384 U.S. 436, 444; People v Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851; People v Rodney P., 21 N.Y.2d 1). The gym bag and its contents should therefore properly have been suppressed as the fruit of this improper interrogation (see, Wong Sun v United States, 371 U.S. 471, 484-486; cf., New York v Quarles, 467 U.S. 649). In addition, the warrantless search of the gym bag at the police station was not justified, no exigent circumstances having been present (see, People v Gokey, 60 N.Y.2d 309; People v Ruffin, 133 A.D.2d 425; cf., People v Smith, 59 N.Y.2d 454; People v Johnson, 59 N.Y.2d 1014; People v Powe, 148 A.D.2d 756). However, under the facts of this case, the erroneous admission into evidence of the gym bag and its contents was clearly harmless beyond a reasonable doubt (see, People v Crimmins, 36 N.Y.2d 230, 237). The items in question simply did not tend to prove any material facts in dispute (cf., People v Rojas, 163 A.D.2d 1).
The trial court did not improvidently exercise its discretion in ruling that the People would be permitted to inquire into the facts of the defendant's recent conviction for attempted robbery in the second degree (People v Allen, 165 A.D.2d 786, 788). As the court noted, evidence of this conviction was highly probative of the defendant's credibility because it related to his willingness to place his own interests above those of society (see, People v Ellis, 162 A.D.2d 611). The mere fact that both the prior crime and the instant crime involved the use or threat of force does not of itself prevent inquiry into the prior conviction (see, People v Alls, 170 A.D.2d 996; People v Natal, 144 A.D.2d 587, affd 75 N.Y.2d 379, cert denied ___ US ___, 111 S Ct 169; People v Fransua, 135 A.D.2d 909; cf., People v Duell, 163 A.D.2d 866).
Viewing the complainant's testimony in a light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was sufficient to establish the element of forcible compulsion beyond a reasonable doubt (see, Penal Law § 130.00; People v Queener, 166 A.D.2d 915; People v Thompson, 158 A.D.2d 563). The defendant's assertions to the effect that the People failed to prove "earnest resistance" by the victim are meritless (see, People v Fransua, supra).
We have examined the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., Rosenblatt, Miller and Santucci, JJ., concur.