| People v Brown |
| 2008 NY Slip Op 02664 [49 AD3d 1345] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KennethBrown, Appellant. |
—[*1] Gerald L. Stout, District Attorney, Warsaw (Vincent A. Hemming of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered May12, 2005. The judgment convicted defendant, upon a jury verdict, of promoting prisoncontraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,that part of the motion seeking to suppress defendant's statement is granted and a new trial isgranted on count one of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofpromoting prison contraband in the first degree (Penal Law § 205.25 [2]), arising from hispossession of a dangerous weapon while he was an inmate at a correctional facility. Contrary todefendant's contention, the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
We agree with defendant, however, that reversal is required based on County Court's refusalto suppress a statement allegedly made by defendant to a correction sergeant shortly after thediscovery of the weapon in the pocket of defendant's pants. At the Huntley hearing, thecorrection sergeant testified that, while a correction officer was conducting a pat-down search ofdefendant, defendant ignored directions to stand still and an altercation ensued. Defendant waseventually subdued and handcuffed, and a second correction officer completed the pat-downsearch and retrieved a weapon from the pocket of defendant's pants. Defendant was then taken toa lobby area outside the presence of other inmates, where he waited with the correction sergeantfor someone to escort defendant to the Special Housing Unit. While they were waiting in thelobby, the correction sergeant "questioned [defendant] on his behavior, what happened, [and]why he did what he did," to which defendant replied, "Yeah, that's right. I did it." We concludethat, under those circumstances, "defendant could have reasonably believed that his freedom wasrestricted over and above that of ordinary confinement" (People v Hope, 284 AD2d 560,562 [2001]; see People v Alls, 83 NY2d 94, 100 [1993], cert denied 511 US 1090[1994]). Miranda warnings were thus required (see Alls, 83 NY2d at 100), but thecorrection sergeant failed to administer them. Furthermore, his inquiry of defendant was notmerely a threshold crime scene inquiry designed to clarify the situation, nor was it "purelyinvestigatory in nature" (People v Mayerhofer, 283 AD2d 672, 674 [2001]; cf. Peoplev Morales, 216 AD2d 154, 154-155 [1995]). Rather, it was [*2]likely that the inquiry would elicit evidence of a crime and, indeed,it did elicit an incriminating response. We further agree with defendant that the error in theadmission of his statement is not harmless beyond a reasonable doubt, inasmuch as there is areasonable possibility that "defendant's statement influenced the verdict" (Alls, 83 NY2dat 104; see generally People v Crimmins, 36 NY2d 230, 237 [1975]). We thereforereverse the judgment, grant that part of the omnibus motion of defendant seeking to suppress hisstatement and grant a new trial on count one of the indictment.
In view of our determination to grant a new trial, we review the contention of defendant thathe is entitled to a change of venue upon the retrial. Insofar as defendant may be deemed to havemade a pre-voir dire motion to change venue pursuant to CPL 230.20, we conclude thatdefendant failed to meet his burden of demonstrating that there is "reasonable cause to believethat a fair and impartial trial cannot be had" in Wyoming County (CPL 230.20 [2]). If, however,it becomes apparent during the voir dire at defendant's retrial that a fair and impartial jury cannotbe drawn, defendant may then make an appropriate application (see People v Mateo, 239AD2d 965 [1997]; People v Scott, 197 AD2d 936 [1993]). In view of our determination,we do not address defendant's remaining contentions. Present—Scudder, P.J., Centra,Lunn, Fahey and Green, JJ.