| People v Henry |
| 2014 NY Slip Op 01215 [114 AD3d 1025] |
| February 20, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v RichardHenry, Respondent. |
—[*1] James P. Milstein, Public Defender, Albany (Christopher J. Ritchey of counsel), forrespondent.
Stein, J. Appeal from an order of the County Court of Albany County (Lynch, J.),entered November 7, 2013, which, among other things, granted defendant's motion tosuppress his statements.
In September 2011, New York State Police Investigator Peter Kozel became awareof a report that suspected images of child pornography were being accessed through theInternet. An investigation into the report led Kozel to an IP address with a subscriber'sname and address in the City of Cohoes, Albany County, as well as an Internet domainname belonging to defendant. As a result, Kozel and another investigator went todefendant's workplace and asked to speak with him. While there, defendant and theinvestigators initially spoke in an office. However, because the office was not private orsecure, Kozel asked defendant if he was willing to accompany them to the police station.Defendant agreed and the investigators transported him to the police station, where theyresumed their questioning in an interview room. Kozel first asked defendant where helived and then inquired about his Internet service. After defendant confirmed that hisresidence matched the Cohoes address in the report and indicated that he accessed the[*2]Internet through his landlord's account,[FN1]Kozel read defendant his Miranda rights. Defendant then waived his rights andproceeded to make various incriminating statements, which were reduced to writing. Asearch warrant for defendant's residence was issued and executed and a number ofcomputers and CDs were seized.
Defendant was subsequently charged by indictment with 34 counts of possessing asexual performance by a child. Defendant filed an omnibus motion seeking, among otherthings, to suppress his statements to the police. Following a Huntley hearing,County Court determined that defendant was in custody when questioned by Kozel at thepolice station and suppressed his non-Mirandized statement regarding his Internetservice. County Court also suppressed his subsequent statements as fruit of the poisonoustree. The People now appeal.
As a rule, Miranda warnings are required once a suspect has been taken intocustody (see People v Doll,21 NY3d 665, 670 [2013]; People v Kenyon, 108 AD3d 933, 935 [2013], lvdenied 21 NY3d 1075 [2013]). The standard for determining if a suspect was incustody "is whether a reasonable person innocent of any wrongdoing would havebelieved that he or she was not free to leave" (People v Paulman, 5 NY3d 122, 129 [2005]; see People v Engelhardt, 94AD3d 1238, 1240-1241 [2012], lv denied 19 NY3d 960 [2012]; People v Underdue, 89 AD3d1132, 1133-1134 [2011], lv denied 19 NY3d 969 [2012]; People v Hook, 80 AD3d881, 882 [2011], lv denied 17 NY3d 806 [2011]; People v Brown, 77 AD3d1186, 1186 [2010]). Whether an individual was in custody is a mixed question oflaw and fact (see People v Paulman, 5 NY3d at 129), which is dependent on thecircumstances existing when the challenged statements were made, considering suchfactors as "the location, length and atmosphere of the questioning, whether policesignificantly restricted defendant's freedom of action, the degree of defendant'scooperation, and whether the questioning was accusatory or investigatory" (People v Pagan, 97 AD3d963, 966 [2012], lv denied 20 NY3d 934 [2012]; see People v Yukl,25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]; People v Vieou, 107 AD3d1052, 1053 [2013]; Peoplev McCoy, 89 AD3d 1218, 1219 [2011], lv denied 18 NY3d 960[2012]).
In our view, the evidence adduced at the Huntley hearing did not supportCounty Court's conclusion that defendant's pre-Miranda statements were theresult of a custodial interrogation and, therefore, defendant's motion to suppress thestatements should have been denied (see People v McClaney, 135 AD2d 901,903 [1987]). Kozel testified at the hearing that he and his partner went to defendant'splace of employment in plain clothes and spoke briefly to defendant. However, becausethe room where they spoke was not private or secure, Kozel asked defendant if he waswilling to go to the police station to be questioned "regarding [I]nternetusage."[FN2]County Court credited Kozel's testimony and concluded that defendant willinglyaccompanied the investigators and that, at that time, "[d]efendant was not in custody, wasnot cuffed, and was not placed under arrest."[*3]
The testimony further revealed that defendantwas brought to a room at the police station where he was interviewed for a total of nomore than 30 minutes. During the brief period that preceded the Mirandawarnings, defendant was not handcuffed or restrained in any manner and theinvestigators did not do anything to convey that defendant was not free to leave (see People v Andrango, 106AD3d 461, 461 [2013], lv denied 21 NY3d 1040 [2013]; People v Strong, 27 AD3d1010, 1012 [2006], lv denied 7 NY3d 763 [2006]). Moreover, the twoquestions that preceded the Miranda warnings—the first asked defendantfor his address and the second inquired into defendant's Internet service—wereinvestigatory, as opposed to accusatory. Considering the totality of the circumstances,and in light of County Court's determinations that Kozel was "frank, candid, andtrustworthy and [that] his testimony had the general force and flavor of credibility," wefind that the People met their burden of establishing beyond a reasonable doubt thatdefendant's pre-Miranda statements were not the product of a custodialinterrogation (see People v McCoy, 89 AD3d at 1220; People vUnderdue, 89 AD3d at 1133; People v Pouliot, 64 AD3d 1043, 1046 [2009], lvdenied 13 NY3d 838 [2009]; People v Dillhunt, 41 AD3d 216, 216-217 [2007], lvdenied 10 NY3d 764 [2008]; People v Strong, 27 AD3d at 1012-1013). As aresult, neither defendant's pre-Miranda statement nor the statements he madeafter he voluntarily waived his Miranda rights should have been suppressed(see People v Underdue, 89 AD3d at 1133).
Peters, P.J., McCarthy and Garry, JJ., concur. Ordered that the order is modified, onthe law, by reversing so much thereof as granted defendant's motion to suppress hisstatements; motion denied to that extent; and, as so modified, affirmed.
Footnote 1: Defendant's landlordwas the IP subscriber linked to the images.
Footnote 2: We disagree withdefendant's assertion that, by making this statement, the investigators conveyed todefendant that he was the suspect of a crime (see Stansbury v California, 511 US318, 325 [1994]). We also note that this communication took place at a time whendefendant concedes he was not in custody.