| People v Fernandez |
| 2009 NY Slip Op 09064 [68 AD3d 469] |
| December 8, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Richard Fernandez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., at hearing; Bonnie G.Wittner, J., at jury trial and sentence), convicting defendant of assault in the first degree, robberyin the first degree (four counts) and robbery in the second degree (two counts), and sentencinghim to an aggregate term of 20 years, unanimously affirmed.
Defendant's statements were not the product of an unlawful arrest. There was ample probablecause, and the victim's statement at a hospital showup that defendant was "not the guy" did not,under the totality of circumstances, obligate the police to release defendant without questioninghim. In very close temporal and spatial proximity to the stabbing of an elderly man, the policeencountered defendant, who was the only person in the area. Defendant's pants were bloody, andhe had an obvious stab wound on his hand. Defendant claimed he had been scratched by hisgirlfriend, and the girlfriend confirmed by telephone that she had recently inflicted a minorscratch, but the officer reasonably concluded that a scratch could not have caused defendant'scondition, and that he was lying. In addition, the police found a bloody knife under a bench indefendant's immediate vicinity, and defendant's clothing matched the description given by thevictim. Given all this evidence, the severely wounded victim's statement that this was "not theguy" did not negate probable cause, and the police acted reasonably in not treating it as anexoneration (see People v Smith, 63AD3d 510 [2009], lv denied 13 NY3d 749 [2009]; People v Roberson, 299AD2d 300 [2002], lv denied 99 NY2d 619 [2003]).
The hearing court, which suppressed defendant's initial statement to police for lack of timelyMiranda warnings, correctly found attenuation with regard to both of defendant'ssubsequent statements, given the lengthy passage of time, and the changes in location andinterrogators (see People vPaulman, 5 NY3d 122, 130-134 [2005]; see also Missouri v Seibert, 542 US600 [2004]). The continued presence of a particular detective was insignificant because he wasnot involved in the questioning; his role was limited to such matters as transporting defendantand asking him if he needed anything. We have considered and rejected defendant's remainingarguments concerning the alleged involuntariness of his statements.
Since the issue was never litigated at trial, the court properly denied defendant's request[*2]to submit to the jury the issue of the voluntariness of hisstatements (see e.g. People vScurlock, 33 AD3d 366 [2006], lv denied 7 NY3d 928 [2006]). In any event,there is no reasonable possibility that, had it been instructed on the issue of voluntariness, thejury would have found either of the statements involuntary. Concur—Tom, J.P., Nardelli,Renwick, Freedman and Roman, JJ.