| People v Lugo |
| 2009 NY Slip Op 01997 [60 AD3d 867] |
| March 17, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Santiago Lugo, Respondent. |
—[*1] Lazzaro Law Firm, P.C., Brooklyn, N.Y. (James Kirshner of counsel), forrespondent.
Appeal by the People, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Gary, J.), entered March 18, 2008, as, upon reargument, adhered to itsoriginal determination, made after a hearing, granting that branch of the defendant's motionwhich was to suppress his statement to law enforcement officials to the extent of precluding thePeople from introducing evidence of the statement in their case-in-chief.
Ordered that the order is reversed insofar as appealed from, on the law, and, uponreargument, the original determination, made after a hearing, granting that branch of thedefendant's motion which was to suppress his statement to law enforcement officials to theextent of precluding the People from introducing evidence of the statement in their case-in-chiefis vacated, that branch of the defendant's motion which was to suppress his statement to lawenforcement officials is denied, and the matter is remitted to the Supreme Court, Kings County,for further proceedings consistent herewith.
The defendant was arrested for driving a vehicle while intoxicated. An inventory search ofhis vehicle led to the recovery of a loaded handgun from the glove compartment. The defendantwaived his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]), and apolice officer advised him that "the more he cooperates, the better it will be for him." The officeralso said that he would inform the District Attorney's office of the defendant's cooperation.Subsequently, the defendant made an inculpatory written statement. The Supreme Courtdetermined that the officer's statement was a promise of leniency and [*2]granted that branch of the defendant's motion which was tosuppress his statement to the extent of precluding the People from introducing evidence of thestatement in their case-in-chief. The court subsequently, in effect, granted the People's motionfor leave to reargue their opposition to that branch of the defendant's motion and, uponreargument, adhered to its original determination.
The Supreme Court erred in suppressing the defendant's statement on the ground that it wasmade in response to the officer's advice that it would be beneficial to the defendant if hecooperated and that the officer would inform the District Attorney's office of his cooperation.The officer's generalized comment regarding the benefits of cooperating did not constitute apromise of leniency that created "a substantial risk that the defendant might falsely incriminatehimself," which would render the statement involuntary (CPL 60.45 [2] [b] [i]; see People vRufino, 293 AD2d 498, 499 [2002]; People v Engert, 202 AD2d 1023, 1024 [1994];People v Belgenio, 164 AD2d 865, 866 [1990]). Nor was the comment of such a naturethat, under the totality of the circumstances, the defendant's will was overborne (see Arizonav Fulminante, 499 US 279 [1991]). Moreover, it was not impermissible for the officer to tellthe defendant merely that he would inform the District Attorney's office of the defendant'scooperation (see People v Crawford, 186 AD2d 144 [1992]; People v Weisbrot,124 AD2d 762 [1986]; People v Rykaczewski, 121 AD2d 409, 409-410 [1986]).
Accordingly, upon reargument, the Supreme Court should have denied that branch of thedefendant's motion which was to suppress his statement to law enforcement officials. Prudenti,P.J., Skelos, Dillon and Eng, JJ., concur.