| People v Cole |
| 2009 NY Slip Op 01347 [59 AD3d 302] |
| February 24, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Charu Cole, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (John Cataldo, J., at suppression hearing;William A. Wetzel, J., at jury trial and sentence), rendered December 22, 2005, convictingdefendant of robbery in the first degree, and sentencing him to a term of 15 years, unanimouslyaffirmed.
The court properly denied defendant's motion to suppress a statement he made while he wasin a holding cell. Approximately an hour before the statement at issue, defendant receivedMiranda warnings, waived his right to remain silent and made an exculpatory oralstatement. Although he refused to give a written statement, this did not invoke his right to remainsilent (see People v Hendricks, 90 NY2d 956 [1997]). Defendant did not preserve hisclaim that his use of the words "I have nothing to say to you" in the course of his initialstatement constituted an invocation of the right of silence, and we decline to review it in theinterest of justice. As an alternative holding, we find that this declaration, when viewed in thecontext of defendant's full statement denying involvement in the robberies in question, wasambiguous, and was not an unequivocal invocation of his right to cut off questioning (seePeople v Goss, 162 AD2d 466 [1990], revd on other grounds 78 NY2d 996 [1991];People v Allen, 147 AD2d 968 [1989], lv denied 73 NY2d 1010 [1989]).Accordingly, the police were entitled to question him further. In any event, we find that thesubsequent holding cell statement was spontaneous. The hearing evidence establishes that theofficers did not engage in the functional equivalent of interrogation when they engaged innormal arrest-related conversation with each other (compare People v Lawrence, 25 AD3d 498 [2006], lvdenied 6 NY3d 835 [2006], with People v Ferro, 63 NY2d 316, 322 [1984], certdenied 472 US 1007 [1985]), or made brief and limited responses to questions and requestsmade by defendant (compare People v Rivers, 56 NY2d 476, 480 [1982], with Peoplev Lanahan, 55 NY2d 711 [1981]).
The trial court properly concluded that, by eliciting testimony that the victim of one of therobberies was unable to make a positive photographic identification, defendant opened the doorto testimony that the victim of the second robbery positively identified defendant in aphotographic procedure (see People v Massie, 2 NY3d 179, 180 [2004]; People vChang Fe Lin, [*2]281 AD2d 321 [2001], lv denied96 NY2d 860 [2001]). Defendant created a misleading impression about how he came to bearrested, and, by revealing to the jury that he was the subject of a photographic procedure, herendered moot the principal objection to evidence of photo identifications, that when suchevidence is introduced "the inference to the jury is obvious that the person has been in troublewith the law before." (People v Caserta, 19 NY2d 18, 21 [1966].) Defendant'sconstitutional claim, and his claim that an officer's testimony about the identification procedurewas improper bolstering, are unpreserved and we decline to review them in the interest ofjustice. As an alternative holding, we find them without merit. Concur—Gonzalez, J.P.,Sweeny, Renwick and Freedman, JJ.