| People v Murphy |
| 2007 NY Slip Op 07083 [43 AD3d 1276] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David G.Murphy, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedJune 19, 2006. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofmurder in the second degree (Penal Law § 125.25 [1]). We reject the contention ofdefendant that County Court erred in refusing to suppress his statement to the police as well asphysical evidence. After learning that defendant was involved in a romantic relationship with thevictim's wife, the police went to defendant's house to inquire further about the relationship.Defendant consented to a search of his home and vehicle and told the police that he recently hadpurchased a rifle but that it had been stolen from him. Defendant then agreed to accompany thepolice to the police station to file a report concerning the stolen rifle. While travelingapproximately five minutes to the police station from his house with two officers in an unmarkedvehicle, defendant told the police that he had some confrontations with the victim and was afraidof him. Upon arriving at the police station, defendant admitted that he knew where his rifle waslocated. The police then advised defendant of his Miranda rights, and defendant gave astatement to the police after waiving his rights.
Contrary to the contention of defendant, the record supports the court's conclusion thatdefendant was not in custody prior to being advised of his Miranda rights. "A reasonableperson in defendant's position, innocent of any crime, would not have believed that he or she wasin custody when the statements were made" (People v Lopez, 39 AD3d 1231, 1232 [2007], lv denied 9NY3d 847 [2007]; see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400US 851 [1970]; People vLunderman, 19 AD3d 1067, 1068-1069 [2005], lv denied 5 NY3d 830 [2005]).Defendant voluntarily accompanied the police to the police station, was cooperative, and wasnever handcuffed, and the police conducted only investigatory rather than accusatory questioning(see People v Dozier, 32 AD3d1346 [2006], lv dismissed 8 NY3d 880 [2007]; Lunderman, 19 AD3d at1068-1069; People v Barrow, 284 AD2d 145 [2001], lv denied 96 NY2d 916[2001]; People v Davis, 161 AD2d 395 [1990], lv denied 76 NY2d 855 [1990])."Because the [*2]initial statement[s were] not the product ofpre-Miranda custodial interrogation, the post-Miranda detailed confession givenby defendant cannot be considered the fruit of the poisonous tree" (People v Flecha, 195AD2d 1052, 1053 [1993]; see People vCunningham, 13 AD3d 1118, 1119 [2004], lv denied 4 NY3d 829 [2005]).
Defendant further contends that he raised a possible defense of extreme emotionaldisturbance during the plea colloquy and that the court failed to conduct a sufficient inquiry toensure that the plea was knowing and voluntary. Even assuming, arguendo, that this is one ofthose rare cases where preservation of defendant's contention is not required because "defendant'srecitation of the facts underlying the crime pleaded to clearly casts significant doubt upon thedefendant's guilt or otherwise calls into question the voluntariness of the plea" (People vLopez, 71 NY2d 662, 666 [1988]), we conclude that the court conducted a sufficient inquiryto ensure that the plea was knowing and voluntary (see People v Greer, 277 AD2d 1051[2000], lv denied 96 NY2d 829 [2001]). Indeed, defendant indicated that he understoodthat he was waiving that defense by pleading guilty. Finally, the sentence is not unduly harsh orsevere. Present—Scudder, P.J., Martoche, Centra, Green and Pine, JJ.