| People v Ervin |
| 2008 NY Slip Op 10281 [57 AD3d 1398] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony Ervin,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Amy J. Fricano, J., trial andsentencing; Penny M. Wolfgang, J., suppression hearing), rendered October 3, 2006. The judgmentconvicted defendant, upon a jury verdict, of attempted rape in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law, thoseparts of the motion seeking to suppress defendant's statement made while en route to the police stationand defendant's written statement made at the police station are granted and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attemptedrape in the first degree (Penal Law §§ 110.00, 130.35 [1]). We note at the outset that theevidence is legally sufficient to support the conviction and that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We agree withdefendant, however, that there is a reasonable view of the evidence by which the jury could have foundthat he established by a preponderance of the evidence that, although he had completed his commissionof the crime of attempted rape, he abandoned his criminal effort to complete the crime of rape "undercircumstances manifesting a voluntary and complete renunciation of his criminal purpose" (Penal Law§ 40.10 [3]; see People v Taylor, 80 NY2d 1, 12 [1992]; People v Dolan, 51 AD3d 1337, 1339[2008]). We thus agree with defendant that reversal is required based on the refusal of the trial court tocharge the affirmative defense of renunciation (see Penal Law § 40.10).
We further agree with defendant that the suppression court, a different Supreme Court Justice fromthe trial justice, erred in refusing to suppress a statement made by defendant in the police vehicle whileen route to the police station and in refusing to suppress his written statement made at the police stationafter he had waived his Miranda rights. The evidence presented at the suppression hearingestablishes that defendant was in custody in the police vehicle when the arresting officer asked himquestions about his life and his church (seePeople v Paulman, 5 NY3d 122, 129 [2005]; People v Yukl, 25 NY2d 585, 589[1969], cert denied 400 US 851 [1970]), and the People failed to establish that the arrestingofficer's questions did not constitute interrogation or its functional equivalent (see Rhode Island vInnis, 446 US 291, 301 [1980]; People v Ferro, 63 NY2d [*2]316, 321 [1984], cert denied 472 US 1007 [1985]). Althoughdefendant waived his Miranda rights prior to questioning at the police station by a differentpolice officer, the arresting officer was present throughout that questioning and again asked defendantabout his life and his church. We conclude that there was not "such a definite, pronounced break in theinterrogation that the defendant may be said to have returned, in effect, to the status of one who is notunder the influence of questioning" (People v Chapple, 38 NY2d 112, 115 [1975]; seePeople v Bethea, 67 NY2d 364, 366 [1986]; cf. Paulman, 5 NY3d at 131).
We note that the trial court erred in failing to comply with CPL 530.13 (former [4]) in setting theexpiration of the date of the order of protection. The date set by the court is not the greater of five yearsfrom the date of conviction or three years from the expiration of the determinate sentence imposed,taking into account jail time credit (see CPL 530.13 [former (4)]). In light of our determinationthat a new trial is warranted, we do not address defendant's remaining contentions.Present—Scudder, P.J., Hurlbutt, Fahey, Peradotto and Pine, JJ.