| People v Mack |
| 2011 NY Slip Op 02527 [82 AD3d 663] |
| March 31, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Nathan Mack, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David C. Bornstein of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas A. Farber, J.), rendered December11, 2008, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in thesecond degree, and sentencing him, as a second felony offender, to a term of five years,unanimously affirmed.
The court properly denied defendant's motion to suppress physical evidence and statements.There is no basis for disturbing any of the court's credibility determinations (see People vProchilo, 41 NY2d 759, 761 [1977]).
The record supports the court's finding that an officer saw defendant picking up a pistol andplacing it in his jacket pocket. This provided the officer with probable cause to pursue and arrestdefendant.
Defendant did not preserve his claim that the police should have obtained a warrant beforesearching his jacket, and the hearing court did not "expressly decide" that issue (see People vTurriago, 90 NY2d 77, 83-84 [1997]). We decline to review this claim in the interest ofjustice. As an alternative holding, we reject it on the merits since the jacket was properlysearched incident to a lawful arrest (see People v Smith, 59 NY2d 454 [1983]). Althoughdefendant testified at the hearing that he discarded his jacket before he was apprehended, thesearch would still have been lawful under that version of the facts, because this would haveconstituted an abandonment in the course of a lawful pursuit (see People vRamirez-Portoreal, 88 NY2d 99, 110 [1996]).
The court properly determined that defendant's post-Miranda statements weresufficiently attenuated from earlier statements that had not been preceded by Mirandawarnings. The pre-Miranda statements were made during sporadic, casualconversation between defendant and the arresting officer during processing, in which the officerasked a few questions that followed up on defendant's spontaneous statements and inquiriesabout his case. Although the officer should have preceded his questions with Mirandawarnings, there was a pronounced break between defendant's inadmissible statements and hislater statements, made after more focused questioning by other officers and an Assistant DistrictAttorney (see People v White, 10NY3d 286, 291 [2008], cert denied 555 US �, 129 S Ct 221 [2008]; People vPaulman, 5 NY3d [*2]122, 130-131 [2005]). Furthermore,defendant demonstrated an unqualified desire to speak to the police from the time of his arrest.Defendant was eager to give what he considered to be an exculpatory or mitigating explanationfor his possession of the pistol. We have considered and rejected defendant's remaining claimsregarding his statements. Concur—Gonzalez, P.J., Friedman, Moskowitz, Freedman andRomÁn, JJ.