| People v George |
| 2015 NY Slip Op 03574 [127 AD3d 1496] |
| April 30, 2015 |
| Appellate Division, Third Department |
[*1](April 30, 2015)
| The People of the State of New York, Respondent, vThomas E. George, Appellant. |
Michael P. Graven, Owego, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Jordan J. Yorke of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered February 21, 2012, convicting defendant upon his plea of guiltyof the crime of criminal possession of a controlled substance in the fifth degree.
Following an uncontested traffic stop of a vehicle in which defendant was apassenger, defendant was indicted for criminal possession of a controlled substance inthe third degree. After County Court denied his motion to suppress a statement madefollowing his arrest, defendant pleaded guilty to the crime of criminal possession of acontrolled substance in the fifth degree and was sentenced to a prison term of three yearswith 1
On appeal, defendant argues that County Court erred in failing to suppress hisstatement and that the physical evidence obtained during the search of his person at thepolice station should have been suppressed. We first observe that defendant's challengeto County Court's denial of his suppression motion survives his guilty plea (seeCPL 710.70 [2]). During the suppression hearing, the arresting officer, ChristopherOsiecki, testified that the driver of the vehicle jumped out and began yelling at the officerand then began to cry. The driver then informed Osiecki that the two passengers might beinvolved in drug activity. With the driver's consent, the vehicle was searched, but nodrugs were found. After defendant consented to a search of his person, Osiecki found aclear plastic baggie in defendant's jacket pocket containing a substance that testedpositive for cocaine at the scene. At this point, defendant was handcuffed, [*2]placed under arrest and transported to the police station in apatrol car by officer Joseph Rudnick. Notably, the other passenger informed Osiecki andRudnick that defendant might have additional drugs in his anal cavity. Rudnick hadpreviously arrested defendant and knew that defendant and the other passenger were"close associates."
The People concede that, by this time, defendant was in custody and that noMiranda warnings had been given. Rudnick testified that, during the transport,defendant directed several profane comments at him upon learning that the field test waspositive. After informing defendant that processing at the station would include a furthersearch of his person and inventory of his property, Rudnick continued by stating, "I hope. . . you don't have anything else—any other narcotics on yourperson," to which defendant replied with the statement at issue on this appeal, "no, Iprobably do." A strip search ensued at the station, where it was confirmed that defendanthad concealed a plastic bag in his rectum containing multiple packets of cocaine. CountyCourt found that defendant removed the bag at the request of the officer, and that therewas no physical contact between defendant and the officer conducting the search (compare People v Nicholas,125 AD3d 1191, 1192 [2015]).
The admissibility of a statement made by a defendant in custody depends on whetherit was "the product of 'express questioning or its functional equivalent' "(People v Bryant, 59 NY2d 786, 788 [1983], quoting Rhode Island vInnis, 446 US 291, 300-301 [1980]). The operative question is whether, in context,"the officer should have known that his statement was 'reasonably likely to evoke anincriminating response from the suspect' " (People v Huffman, 61 NY2d795, 797 [1984], quoting Rhode Island v Innis, 446 US at 301; see People vFerro, 63 NY2d 316, 322-323 [1984], cert denied 472 US 1007 [1985]). Inour view, County Court erred in concluding that the inculpatory statement wasadmissible because it was simply a spontaneous response to a declaration by Rudnick.For a statement to be spontaneous, it must be self-generated without "inducement,provocation, encouragement or acquiescence, no matter how subtly employed"(People v Maerling, 46 NY2d 289, 302-303 [1978]; see People v Rivers,56 NY2d 476, 479 [1982]). Coming on the heels of Rudnick's explanation that defendantwould be searched as part of the booking process, and having been informed by thepassenger that defendant may have hidden additional drugs on his person, we findRudnick's statement to be the functional equivalent of a question intended to elicit anincriminating response (see People v Ferro, 63 NY2d at 323-324; People vLucas, 53 NY2d 678, 680 [1981], cert denied 474 US 911 [1985]; People v Tavares-Nunez, 87AD3d 1171, 1173 [2011], lv denied 19 NY3d 1105 [2012]; comparePeople v Huffman, 61 NY2d at 797). Since defendant was in custody and had notbeen given Miranda warnings, the statement should have been suppressed asinvoluntary.
As a consequence, defendant maintains that the cocaine seized from his personduring the strip search must also be suppressed. Generally, a pretrial suppression motionmust contain sworn allegations of fact supporting the grounds raised, except where themotion seeks to suppress an involuntary statement or identification stemming from animproper procedure (see CPL 710.60 [1]; People v Huntley, 259 AD2d843, 844-845 [1999], lv denied 93 NY2d 972 [1999]). In his omnibus motion,defendant moved for a Huntley hearing to suppress the statement, but no requestwas made for a Mapp hearing to suppress the cocaine seized at the police station.The People consented to a Huntley hearing, but at the commencement of thathearing the People informed County Court that defendant had just advised that he wasalso seeking a Mapp hearing. In response, County Court observed that therelevant inquiry involved "a suppression Fourth Amendment search and seizure issuewith some statements/Huntley issues [*3]intertwined." At defendant's request, the hearing proceededon that basis.[FN*]
Given that a full Huntley/Mapp hearing was conducted, we find that theMapp issue has been preserved for our review (compare People vHuntley, 259 AD2d at 845). That being said, we also find that the cocaine was notseized as a direct result of the suppressed statement (compare People v Paulin, 25NY2d 445, 450-451 [1969]; People v Ross, 88 AD2d 729, 729 [1982]). Here, thearresting officer knew that defendant had been involved with drugs in the past, thevehicle was stopped in an area known for drug trafficking, the driver's behavior waserratic and he told the police that the passengers might be involved in illegal drugactivity, defendant was found in possession of cocaine at the scene that he claimed wascrushed aspirin, and the other passenger indicated that defendant may have concealeddrugs in his rectum. These circumstances provided the police with a reasonable andarticulable factual basis to conduct a strip search at the station, independent of thesuppressed statement (seePeople v Hall, 10 NY3d 303, 308-309 [2008], cert denied 555 US 938[2008]; People v Cogdell,126 AD3d 1136, 1139 [2015]; People v Kelley, 306 AD2d 699, 700-701[2003], lv denied 1 NY3d 598 [2004]). Nor does defendant raise any issue as tothe reasonableness of how the search was conducted. As such, we find no basis tosuppress this evidence. However, given that County Court erred in denying defendant'smotion to suppress the postarrest statement, defendant's judgment of conviction must bereversed and the matter remitted for further proceedings (see People v Bradshaw, 76AD3d 566, 572-573 [2010], affd 18 NY3d 257 [2011]; People v Leonard, 119 AD3d1237, 1240-1242 [2014, Lynch, J., dissenting]).
Garry, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment is reversed, onthe law, motion to suppress statement granted, and matter remitted to the County Courtof Chemung County for further proceedings not inconsistent with this Court'sdecision.
Footnote *:The People reserved theright to submit a posthearing brief, in which they raised the inadequacy and untimelinessof the Mapp request. Having found that the challenged statement wasspontaneous and admissible, County Court did not address the secondary Mappquestion.