| People v Gause |
| 2008 NY Slip Op 03522 [50 AD3d 1392] |
| April 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Garlyn M.Gause, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira, for respondent.
Malone Jr., J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered October 13, 2006, upon a verdict convicting defendant of the crime of promotingprison contraband in the first degree.
On October 12, 2005, correction officials at Elmira Correctional Facility in Chemung Countyordered a general frisk of cells on the gallery where defendant was housed. During the frisk,defendant was handcuffed and removed from his cell to an area where he was directed to sit on aspecial chair, known as the BOSS chair, that detected metal objects. Defendant was twice askedif he had metal objects on his person and, following his denials, the BOSS chair indicated that hewas lying. As a result, defendant was then taken to the frisk room in the special housing unitwhere his handcuffs were removed, he was placed with his hands against the wall and wasadvised that he was going to be strip frisked. Prior to the frisk, defendant was asked if he hadanything on him and he replied that he had a weapon secreted in his buttocks. At this point, hevoluntarily surrendered a doubled over razor blade with tape on one end wrapped in tissue.
Defendant was subsequently charged in an indictment with promoting prison contraband inthe first degree. Prior to trial, he moved, among other things, to suppress his statement admittingto possession of the contraband. Following a Huntley hearing, County Court denied themotion. Defendant was ultimately convicted after a jury trial and he was sentenced as a [*2]second felony offender to a prison term of 2½ to 5 years. Henow appeals.
Defendant contends that County Court erred in denying his motion to suppress the statementbecause he made it without first having been given Miranda warnings. Preliminarily, wenote that Miranda warnings need only be administered to a prison inmate where " 'thecircumstances of the detention and interrogation . . . entail added constraint thatwould lead a prison inmate reasonably to believe that there has been a restriction on that person'sfreedom over and above that of ordinary confinement in a correctional facility' " (People v Van Patten, 48 AD3d 30,33 [2007], quoting People v Alls, 83 NY2d 94, 100 [1993], cert denied 511 US1090 [1994]). Here, defendant was removed from his cell, handcuffed, detained and directed tosit on the BOSS chair and then escorted to the frisk room in the special housing unit under closeguard where he was to be strip frisked. Under these circumstances, we find that defendant wasunder added constraint of the type that required him to be given Miranda warnings priorto any custodial interrogation (see People v Van Patten, supra; see also People vCruz, 258 AD2d 823 [1999], lv denied 93 NY2d 1002 [1999]; cf. People v Douglas, 12 AD3d1174 [2004]; People v Ward, 241 AD2d 767 [1997], lv denied 91 NY2d 837[1997]).
It is undisputed that Miranda warnings were not administered to defendant. CountyCourt, however, found that Miranda warnings were unnecessary because the question thatprompted defendant's admission was motivated by a safety concern relating to the removal of adangerous weapon from the correctional facility. The public safety exception to theMiranda rule has been applied where law enforcement officials have posed questionsmotivated by a concern for their own safety and that of the general public, such as to ascertain thelocation of a weapon in a public area, and not for the purpose of obtaining an incriminatingresponse (see New York v Quarles, 467 US 649, 655-656 [1984]; People v Johnson, 46 AD3d 276,277 [2007]; People v Scotchmer, 285 AD2d 834, 836 [2001], lv denied 96 NY2d942 [2001]; People v Sanchez, 255 AD2d 614, 615 [1998], lv denied 92 NY2d1053 [1999]). Significantly, it has not been applied in a prison context such as this where aquestion was asked of an inmate by a correction officer during a strip frisk, the very purpose ofwhich was to seize a weapon. Inasmuch as it may be reasonably inferred that the question wasintended to elicit incriminating information in furtherance of the strip frisk, we are of the viewthat the public safety exception is inapplicable and that Miranda warnings should havebeen given to defendant (see e.g. People v Hope, 284 AD2d 560, 562 [2001]).
Nevertheless, we find this error to be harmless under the circumstances presented. Thetestimony of the correction officer who conducted the strip frisk together with the blade itself, theadmissibility of which was not challenged at trial, provided overwhelming proof of defendant'sguilt (see People v Payne, 41 AD3d512, 514 [2007]; People vChatman, 38 AD3d 1282, 1283 [2007], lv denied 8 NY3d 983 [2007]).Accordingly, we find that County Court's error in denying suppression was harmless beyond areasonable doubt (see People vO'Connor, 6 AD3d 738, 740 [2004], lv denied 3 NY3d 645 [2004]; seegenerally People v Crimmins, 36 NY2d 230, 237 [1975]).
Cardona, P.J., Carpinello, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.