| People v Brown |
| 2010 NY Slip Op 07625 [77 AD3d 1186] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mwata A.Brown, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered May 10, 2007, convicting defendant following a nonjury trial of the crime of grandlarceny in the fourth degree.
An indictment charged defendant with grand larceny in the fourth degree for stealing thevictim's income tax refund. Following a nonjury trial, County Court found defendant guilty andimposed sentence. Defendant appeals.
County Court correctly denied defendant's motion to suppress his statements to the police. Todetermine whether a reasonable person in defendant's position would have felt free to leave, orwhether the questioning was custodial and required Miranda warnings (see People v Lowin, 71 AD3d1194, 1196 [2010]), courts look to numerous factors, including the amount of time thepolice spent with the individual, whether the police restricted the person's freedom of action inany significant manner, the location and atmosphere of the questioning, the degree of cooperationthe person exhibited and whether the questioning was investigatory or accusatory (see Peoplev Johnston, 273 AD2d 514, 515 [2000], lv denied 95 NY2d 935 [2000]; People vHofmann, 238 AD2d 716, 719 [1997], lv denied 90 NY2d 940 [1997]). Aplainclothes police detective approached defendant at his workplace and they went into a privateoffice, where the detective began with investigatory questions. Defendant cooperated byanswering the questions [*2]and providing his version of events.After only 10 or 15 minutes, the detective requested that defendant accompany him to the policestation. Only when defendant balked did the detective inform him that he must go or he would behandcuffed. An innocent person in defendant's position would have believed that he or she wasfree to leave up until that point (see People v Lowin, 71 AD3d at 1196). Therefore, anystatements made by defendant at his workplace were admissible. Defendant accompanied thedetective to the station without being restrained, was advised of his Miranda rights andwaived them before further questioning. Those custodial statements were admissible becausedefendant made them after he was informed of and waived his rights. Hence, the court correctlydenied the suppression motion.
The evidence is legally sufficient and the conviction is not against the weight of the evidence.It is undisputed that defendant agreed to prepare the victim's federal income tax return, he did soand she was entitled to a refund of $1,666. Bank records prove that this amount waselectronically deposited by the federal government into a bank account belonging to defendant'sgirlfriend and was withdrawn from the account the same day. The victim testified that she neverreceived the money. This evidence was legally sufficient to support the conviction. In defense,defendant testified that he gave the victim the refund money in cash but did not ask for a receipt.He testified that his girlfriend accompanied him to the bank to withdraw that money and theyimmediately went to the victim's place of employment to pay her. The girlfriend did not recallwhat defendant did with the money, but remembered possibly accompanying defendant to paytax money to a woman in a different city at a different time. Giving deference to the factfinder'scredibility determinations in favor of the victim, the conviction was not against the weight of theevidence (see People v Christopher,64 AD3d 1006, 1007 [2009], lv denied 13 NY3d 795 [2009]; People vBombard, 270 AD2d 648, 648-649 [2000]).
Cardona, P.J., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.