| People v Mejia |
| 2009 NY Slip Op 05419 [64 AD3d 1144] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jose Mejia,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered July 19,2007. The judgment convicted defendant, upon a jury verdict, of murder in the first degree,robbery in the first degree, criminal possession of a weapon in the second degree and criminalpossession of stolen property in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,those parts of the motion seeking to suppress statements made by defendant to the police aregranted and a new trial is granted on counts one through four and six and seven of theindictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, murder in the first degree (Penal Law § 125.27 [1] [a] [vii]; [b]) and robbery inthe first degree (§ 160.15 [2]). Contrary to defendant's contention, County Court properlyadmitted the trial testimony of a witness concerning an admission by silence by defendant(see People v Olewine, 164 AD2d 971 [1990]; see generally People v Lord, 103AD2d 1032, 1033 [1984], lv denied 63 NY2d 776 [1984]). We reject the furthercontention of defendant that the court erred in denying that part of his omnibus motion seekingto suppress his sneakers. "In reviewing a determination of the suppression court, great weightmust be accorded its decision because of its ability to observe and assess the credibility of thewitnesses, and its findings should not be disturbed unless clearly erroneous" (People vStokes, 212 AD2d 986, 987 [1995], lv denied 86 NY2d 741 [1995]). Here, thesuppression court credited the testimony of the police officers that, when they arrived atdefendant's house, defendant asked his mother for his sneakers, and his mother gave the sneakersto an officer. The record thus supports the court's determination that the police lawfully obtainedthe sneakers from defendant's mother in accordance with defendant's request.
We agree with defendant, however, that the court erred in denying those parts of his omnibusmotion seeking to suppress his statements to the police. The court again credited the testimony ofthe police officers but, contrary to the court's determination, we conclude that their testimonyestablishes that defendant was in custody during the interrogation. The police officers, who hadknowledge that a codefendant had implicated defendant in the murder, testified that they went todefendant's home and asked defendant to accompany them to the police station. Althoughdefendant agreed, he was frisked and handcuffed, and the handcuffs were not removed [*2]until defendant was placed in a secure interview room. In addition,defendant was escorted when he needed to use the bathroom. The police began to questiondefendant about the shooting but did not administer Miranda warnings until after he hadmade incriminating statements. We agree with defendant that a reasonable person, innocent ofany crime, would have believed under those circumstances that he or she was in custody (see People v Rhodes, 49 AD3d668, 669 [2008], lv denied 10 NY3d 938 [2008]; People v Ramos, 27 AD3d 1073, 1074-1075 [2006], lvdismissed 6 NY3d 897 [2006]; People v Evans, 294 AD2d 918, 919 [2002], lvdismissed 98 NY2d 768 [2002]; see generally People v Yukl, 25 NY2d 585, 589[1969], cert denied 400 US 851 [1970]).
In light of our determination, we do not review defendant's remaining contentions.Present—Smith, J.P., Centra, Peradotto, Green and Gorski, JJ.