| People v Jemmott |
| 2014 NY Slip Op 02630 [116 AD3d 1244] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMalcolm Q. Jemmott, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joshua Harris Povill of counsel),for respondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered February 17, 2012, convicting defendant upon his plea of guilty of the crimeof criminal possession of a weapon in the second degree.
In September 2010, two individuals in the City of Kingston, Ulster County flaggeddown a police cruiser. Pointing at defendant walking nearby, they stated that he hadthreatened one of them with a gun. After briefly following defendant, Detective EricVanAllen stopped him, conducted a pat-down search, and asked him a few questions;defendant was then handcuffed and placed in a police vehicle. Officers searched thevicinity and did not find a weapon, but thereafter located a parked vehicle matching adescription of a green minivan that the victims said they had seen defendant drivingimmediately after the incident. The minivan was registered in the name of an individualwhose identification had been found in defendant's possession during the pat-downsearch, and an officer stated that he saw a gun inside the vehicle. Using a key that hadbeen found on defendant's person during the search, VanAllen unlocked and entered theminivan, where he found a loaded firearm in plain sight. VanAllen then had a briefconversation with defendant, but stopped when defendant stated that he was thinkingabout talking with a lawyer. Defendant was brought to the police station; several hourslater, he asked to speak with VanAllen and made a recorded statement after twice beinggiven Miranda warnings.[*2]
Defendant was subsequently indicted for criminalpossession of a weapon in the second degree and criminal possession of a weapon in thethird degree (two counts). Following a joint Huntley, Wade,Mapp and Dunaway hearing, County Court partially denied defendant'smotion to suppress evidence and statements. Defendant pleaded guilty to criminalpossession of a weapon in the second degree in full satisfaction of the indictment andwas sentenced as a second felony offender to a prison term of 12 years. Defendantappeals.
We reject defendant's contention that his responses to VanAllen's inquiries duringthe pat-down search should have been suppressed. A police officer who reasonablysuspects that a person has committed a crime may stop and detain that person, and neednot administer Miranda warnings before asking questions "for the purpose ofascertaining [the person's] identity and an explanation of his [or her] conduct"(People v Walker, 267 AD2d 778, 780 [1999], lv denied 94 NY2d 926[2000]; see CPL 140.50 [1]; People v Tunstall, 278 AD2d 585, 587[2000], lv denied 96 NY2d 788 [2001]). VanAllen's questions as to defendant'sname and whether he "had a problem with a girl around the corner" were permissible as"threshold crime scene inquiries designed to clarify the situation" (People v Coffey, 107 AD3d1047, 1050 [2013], lv denied 21 NY3d 1041 [2013] [internal quotationmarks and citations omitted]). Moreover, his questions as to whether defendant had a gunor had "tossed" a gun away—asked soon after defendant had allegedly threatenedthe victims with a weapon, near a school that was about to close for the day, releasingchildren into the neighborhood where police suspected that the gun waslocated—were justified by " 'the immediate necessity of ascertaining thewhereabouts of a [threat to the public safety]' " (People v Strickland, 169 AD2d9, 12 [1991], quoting New York v Quarles, 467 US 649, 657 [1984]; seePeople v Scotchmer, 285 AD2d 834, 836 [2001], lv denied 96 NY2d 942[2001]; People v Sanchez, 255 AD2d 614, 615 [1998], lv denied 92NY2d 1053 [1999]).
County Court properly refused to suppress the gun and other evidence derived fromthe search of the vehicle. The minivan—found about 150 yards from the crimescene—was the only vehicle in the area that fit the victims' description of the greenminivan that defendant had been driving, matched the identification and car keys foundin defendant's possession, and contained a weapon in plain sight. Thus, officers hadprobable cause to believe that the vehicle contained contraband, there was a nexusbetween this probable cause and defendant's arrest, and the warrantless search waspermissible (see People v Galak, 81 NY2d 463, 467 [1993]; People v Anderson, 104 AD3d968, 970 [2013], lv denied 21 NY3d 1013 [2013]; People v Myers,303 AD2d 139, 145 [2003], lv denied 100 NY2d 585 [2003]).
However, defendant's statements to VanAllen in the police station should have beensuppressed. Police may not continue to question a suspect in custody who unequivocallyinvokes the right to counsel, and any purported waiver of the right thereafter isineffective if it is made without counsel present (see People v Grice, 100 NY2d318, 320-321 [2003]; People v Esposito, 68 NY2d 961, 962 [1986]). "Whether aparticular request is or is not unequivocal is a mixed question of law and fact that mustbe determined with reference to the circumstances surrounding the request including thedefendant's demeanor, manner of expression and the particular words found to have beenused by the defendant" (People v Glover, 87 NY2d 838, 839 [1995]). Here,VanAllen testified that, after the gun was found, he and defendant had a brief discussionin which defendant asked what he should do, and VanAllen responded that defendantshould tell the truth. According to VanAllen, defendant then became "sarcastic," stating,"I am thinking of talking to an attorney," and VanAllen immediately terminated theinterview. After defendant asked to speak with him later that evening, VanAllen beganthe recorded interview by asking, "Did there [*3]come apoint in time earlier today when you asked for an attorney?"[FN*] Defendant asked VanAllen to repeat the question, and VanAllen said, "Earlier today. . . did you tell me you wanted to talk to your lawyer?" Defendantanswered, "Yeah." VanAllen then asked defendant whether he was now willing toanswer questions without an attorney, and—with somehesitation—defendant responded that he was.
Phrases such as "I think" or "maybe" do not necessarily establish that a request forcounsel is uncertain or equivocal (see People v Esposito, 68 NY2d at 962; People v Jones, 21 AD3d429, 429 [2005], lv denied 6 NY3d 755 [2005]). The relevant inquiry iswhether a reasonable police officer would have understood the statement in question as arequest for an attorney (see Davis v United States, 512 US 452, 459 [1994]).Although this is an objective standard, the fact that an officer did, in fact, treat adefendant's request as an assertion of the right to counsel is properly taken into accountin assessing what a reasonable police officer would have believed (see People v Harris, 93 AD3d58, 69-70 [2012], affd 20 NY3d 912 [2012]). Here, despite the allegedlysarcastic tone of defendant's initial statement, VanAllen indicated that he understood it asa request for counsel by promptly ceasing his inquiries. Further, when VanAllen latertwice asked whether he had requested counsel, defendant confirmed without anyequivocation that he had. Under these circumstances, a reasonable police officer wouldhave understood that defendant had asserted his right to counsel (see People v Porter, 9 NY3d966, 967 [2007]; People v Harris, 93 AD3d at 69-70; People v Wood, 40 AD3d663, 664 [2007], lv denied 9 NY3d 928 [2007]). Accordingly, defendant'salleged waiver was ineffective, and his statements following the initial request shouldhave been suppressed.
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, that part of defendant's motion to suppress statements made after heinvoked his right to counsel granted as set forth herein, and matter remitted to the CountyCourt of Ulster County for further proceedings not inconsistent with this Court'sdecision.
Footnote *: There are certaininconsistencies between the recording of defendant's statement that was provided to thisCourt and the transcription included in the record; where such differences exist, we haverelied upon the recording.