| People v Neal |
| 2009 NY Slip Op 01736 [60 AD3d 1158] |
| March 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert D.Neal, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Amanda M. Chafee of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered January 14, 2008, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
In this appeal, defendant argues that County Court erred in finding that the second of twoincriminating statements that he gave need not be suppressed since such statement wassufficiently attenuated from the earlier (suppressed) statement. Defendant's parole officerreceived a tip regarding defendant's alleged involvement in transporting drugs and he relayed theinformation to police. As a result, police eventually stopped a vehicle whose occupants includeddefendant, his wife, his wife's sister and another individual. His wife's sister was discovered topossess cocaine and she insisted that it belonged to defendant. Although defendant initiallydenied ownership to his parole officer when the parole officer arrived at the scene at about 2:15p.m., defendant asked to speak with him again about 15 minutes later and, indicating that he waslooking for "some leniency," admitted that the cocaine was his. Defendant was transported to thepolice station where, shortly after 3:30 p.m., he received Miranda warnings and thengave an incriminating written statement to a police officer.
Defendant was indicted for criminal possession of a controlled substance in the third degreeand criminal possession of a controlled substance in the fourth degree. He moved to [*2]suppress both his oral statement to his parole officer and thesubsequent written statement he gave to police. County Court suppressed the oral statement sinceit was given before any Miranda warnings had been administered. However, the courtdenied the motion as to the written statement, finding a sufficient attenuation to remove any taintcreated by the first statement. Defendant subsequently pleaded guilty to one count of criminalpossession of a controlled substance in the third degree. He was sentenced, as a second felonyoffender, to a term of incarceration and postrelease supervision. He now appeals.
We affirm. "[W]here an improper, unwarned statement gives rise to a subsequent Mirandizedstatement as part of a 'single continuous chain of events,' there is inadequate assurance that theMiranda warnings were effective in protecting a defendant's rights, and the warnedstatement must also be suppressed" (People v Paulman, 5 NY3d 122, 130 [2005], quoting People vChapple, 38 NY2d 112, 114 [1975]; see People v Hall, 41 AD3d 880, 882-883 [2007], lvdenied 9 NY3d 876 [2007]; Peoplev Durrin, 32 AD3d 665, 667-668 [2006]). A host of factors are relevant in determiningwhether there has been a sufficient attenuation between the illegal questioning and subsequentwarned statement, "including the time differential between the Miranda violation and thesubsequent admission; whether the same police personnel were present and involved in elicitingeach statement; whether there was a change in the location or nature of the interrogation; thecircumstances surrounding the Miranda violation, such as the extent of the improperquestioning; and whether, prior to the Miranda violation, defendant had indicated awillingness to speak to police" (People v Paulman, 5 NY3d at 130-131; see People v White, 10 NY3d286, 291 [2008], cert denied 555 US —, 129 S Ct 221 [2008]).
Defendant's initial oral statement was made to his parole officer. Parenthetically, we notethat the parole officer did not need to administer Miranda warnings for the statement tobe admissible in a parole revocation hearing, but Miranda warnings were required to useit in a criminal proceeding (see People ex rel. Maiello v New York State Bd. of Parole,65 NY2d 145, 146-147 [1985]). The statement to the parole officer was brief and not the resultof anything beyond cursory questioning. Well over an hour passed before the relevant secondstatement by defendant. During that time, defendant was transported from the scene of the stopto a police station. The second statement was given to a different individual who was working ina different law enforcement agency. Before the Miranda warnings had been given,defendant expressed a willingness to speak to his parole officer at the scene in an effort to gainleniency and, when later transported to the police station and Mirandized, he willingly spoke topolice and gave a written statement. The police officer who took the statement characterizeddefendant as cooperative. Under the circumstances of this case, there was "such a definite,pronounced break in the interrogation that the defendant may be said to have returned, in effect,to the status of one who is not under the influence of questioning" (People v Chapple, 38NY2d at 115; see People v Parker,50 AD3d 1607, 1607 [2008], lv denied 11 NY3d 792 [2008]). Accordingly, CountyCourt properly denied defendant's motion to suppress as to the written statement he gave at thepolice station.
Peters, J.P., Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.