| People v Ziegler |
| 2010 NY Slip Op 08458 [78 AD3d 545] |
| November 18, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v PaulZiegler, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J., at suppression hearing;William A. Wetzel, J., at jury trial and sentence), rendered July 12, 2007, convicting defendant ofcriminal possession of a controlled substance in the fourth degree, and sentencing him, as a second drugfelony offender, to a term of 4½ years, unanimously affirmed.
The court properly denied defendant's motion to suppress his statements to the police. Defendant'sstatement at the scene of his arrest was spontaneous and not the product of interrogation or itsfunctional equivalent. The officer's innocuous general comments about the case made on the way to thepolice car were not reasonably likely to elicit an incriminating response (see People v Rivers,56 NY2d 476, 480 [1982]; People v Lynes, 49 NY2d 286, 294-295 [1980]). In any event,defendant's statement made to different officers at the precinct, approximately four hours later and afterreceiving Miranda warnings, was sufficiently attenuated from the earlier statement (see People v White, 10 NY3d 286,291 [2008], cert denied 555 US —, 129 S Ct 221 [2008]; People v Paulman, 5 NY3d 122,130-131 [2005]), and any error in receiving the pre-Miranda statement was harmless becauseit was merely cumulative to the post-Miranda statement (see People v Sanders, 56NY2d 51, 66 [1982]).
Defendant has not established that two jury notes were substantive inquiries that requiredcompliance with the procedures mandated by CPL 310.30 (see People v O'Rama, 78 NY2d270 [1991]). Instead, these notes only necessitated the ministerial actions of sending certain exhibitsinto the jury room and informing the jury that an additional requested item was not in evidence (see e.g. People v Johnson, 46 AD3d415, 416-417 [2007], lv denied 10 NY3d 812 [2008]). Neither note can be reasonablyinterpreted as calling for a readback of testimony, and there were no ambiguities requiring the court tomake inquiries of the jury or take input from counsel.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Saxe, McGuire,Freedman and Abdus-Salaam, JJ.