| People v Howard |
| 2010 NY Slip Op 02876 [72 AD3d 1199] |
| April 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jason C.Howard, Appellant. |
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Mercure, J.P. Appeal from a judgment of the County Court of Tompkins County (Rowley,J.), rendered July 14, 2008, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a controlled substance in the third degree and criminal possession of a controlledsubstance in the fourth degree.
During the course of a police investigation into narcotics sales, investigators obtained searchwarrants for an apartment occupied by Jason Lowe in the City of Ithaca, Tompkins County, aswell as defendant's person and a vehicle rented by him. When officers executed the searchwarrant for Lowe's apartment, they found and detained both Lowe and defendant. At theapartment, defendant was searched and questioned as to where Lowe kept narcotics in theapartment. Approximately 2½ hours after the search of the apartment began, policesearched defendant's rental vehicle and found cocaine and a sum of money. Defendant wasmoved to the police station and, within an hour of the search of the rental vehicle, he wasadministered Miranda warnings for the first time and questioned, making severalincriminating statements in the process.
Thereafter, defendant was charged in an indictment with one count each of criminalpossession of a controlled substance in the third degree and criminal possession of a controlled[*2]substance in the fourth degree. After his efforts to challengethe validity of the search warrants and suppress his statement made at the police station provedunsuccessful, he pleaded guilty to the indictment in full. He was sentenced as a second felonyoffender to an aggregate prison term of 3½ years to be followed by 1½ years ofpostrelease supervision, and now appeals.
Contrary to the People's claims, defendant's arguments are all preserved for our review;nevertheless, we affirm. Initially, defendant takes issue with County Court's ruling, after an incamera review of the search warrant applications for his person and rental vehicle, that thosewarrants were issued upon probable cause. The warrant applications at issue involved twoconfidential informants, both of whom had provided investigators with accurate and reliableinformation in the past that had led to the recovery of drugs. One of those informants made twoprearranged controlled drug purchases from defendant as an agent of the police. The telephonecalls setting up the purchases were recorded and the informant was searched prior to thetransactions, which were then observed and recorded by investigators. Moreover, bothtransactions occurred in rental vehicles, defendant had returned to the area in a rental vehicle atthe time of the warrant applications, and the second confidential informant had indicated thatdefendant would be selling drugs from that vehicle. Inasmuch as this evidence amply establishedthe reliability of both informants and the information obtained from them, it provided reasonablecause to believe that evidence of drug crimes would be found on defendant's person and in hisvehicle and, thus, justified the issuance of the warrants (see CPL 690.40 [2]; People v Alston, 1 AD3d 627,628-629 [2003], lv denied 1 NY3d 594 [2004]; People v Lee, 303 AD2d 839,840 [2003], lv denied 100 NY2d 622 [2003]; People v Scott, 256 AD2d 657,658-659 [1998], lv denied 92 NY2d 1038 [1998]).
Turning to the voluntariness of defendant's statement to police, he argues that he wasimproperly subjected to custodial interrogation when questioned at Lowe's apartment, whichwarranted suppression of his later Mirandized statement, as both were "part of a 'singlecontinuous chain of events' " (People vPaulman, 5 NY3d 122, 130 [2005], quoting People v Chapple, 38 NY2d 112,114 [1975]; see People v White, 10NY3d 286, 290-291 [2008], cert denied 555 US —, 129 S Ct 221[2008]). Defendant was undoubtedly in custody at Lowe's apartment, but it is arguable whetherthe inquiries made there—namely, whether he knew where Lowe kept drugs in theapartment—constituted an interrogation, inasmuch as those questions could not reasonablybe expected to, and did not, elicit a response from defendant that incriminated him (seeRhode Island v Innis, 446 US 291, 301-302 [1980]; People v Paulman, 5 NY3d at129). Assuming that an impermissible custodial interrogation did occur, whether the questioningof defendant and his later Mirandized statement comprised a single continuous chain of eventsdepends upon a number of factors, including: (1) the time elapsed between the Mirandaviolation and later statement, (2) whether the same police officers were involved in obtainingeach statement, (3) whether a change in the location or nature of the questioning occurred, (4)the circumstances surrounding the violation itself and (5) whether defendant had indicated awillingness to speak to police prior to the Miranda violation (see People vPaulman, 5 NY3d at 130-131; People v Hall, 41 AD3d 880, 883 [2007], lv denied 9NY3d 876 [2007]).
Here, the same investigator conducted both interviews, defendant did not evince a priorwillingness to speak to that investigator, and County Court credited defendant's testimony thatsuch questioning occurred while the investigator was conducting a strip search of defendant.That being said, the initial questioning was very brief and was designed to assist police in theirsearch of Lowe's apartment, while the later questioning related to defendant's involvement incriminal activity. Moreover, some time passed between the initial questioning and the [*3]Mirandized interview, and defendant was moved from theapartment to the police station prior to the later interview. Defendant also made no inculpatorystatements at the apartment and that fact, while not dispositive, points against a finding that theearlier statement tainted the later one (see People v White, 10 NY3d at 291).Accordingly, County Court properly determined that any taint caused by the initial questioninghad dissipated by the time of the Mirandized interview.
We have also reviewed a video recording of defendant's interrogation and are satisfied thathis statement that he had "nothing to say," when taken in context, was not an unequivocalinvocation of his right to remain silent or a direction that he wished the interview to end (see People v Cole, 59 AD3d 302,302-303 [2009], lv denied 12 NY3d 924 [2009]; People v Lowin, 36 AD3d 1153, 1154-1155 [2007], lvdenied 9 NY3d 847 [2007]; People v Allen, 147 AD2d 968, 968 [1989], lvdenied 73 NY2d 1010 [1989]).
Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.