| People v Anthony |
| 2011 NY Slip Op 04942 [85 AD3d 1634] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Johnny L.Anthony, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered January21, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession of aweapon in the second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).Contrary to defendant's contention, County Court properly refused to suppress his statementmade to the police despite the fact that he had not yet been advised of his Miranda rights.The record of the suppression hearing establishes that a police officer approached defendant inthe parking lot of his place of employment following the officer's receipt of a report thatdefendant possessed a handgun. Defendant denied that he possessed a weapon and, following apat-down search of his person (see CPL 140.50 [1], [3]; People v De Bour, 40NY2d 210, 223 [1976]), he consented to a search of his lunch box and his vehicle. Following thediscovery of the weapon in the vehicle, an officer asked defendant whether he knew what hadbeen found, to which defendant replied that the weapon belonged to his brother and thatdefendant carried it for protection.
It is axiomatic that "both the elements of police 'custody' and police 'interrogation' must bepresent before law enforcement officials constitutionally are obligated to provide the proceduralsafeguards imposed upon them by Miranda" (People v Huffman, 41 NY2d 29, 33[1976]). Although the officer's question was accusatory rather than investigatory in natureinasmuch as it was likely to elicit an incriminating response (see People v Brown, 49 AD3d 1345, 1346 [2008]), we neverthelessconclude that the court properly determined that defendant was not in custody when he made theincriminating response. "The standard for assessing a suspect's custodial status is whether areasonable person innocent of any wrongdoing would have believed that he or she was not free toleave" (People v Paulman, 5 NY3d122, 129 [2005]; see People vTaylor, 82 AD3d 1133 [2011]). Here, defendant voluntarily consented to the search ofhis vehicle and stood, unrestrained, in the parking lot of his place of [*2]employment while the search was conducted (see generallyTaylor, 82 AD3d at 1133-1134). Under these circumstances, we conclude that the courtproperly determined that defendant was not in custody when he made the statement and thus thatthe police were not obligated to advise him of his Miranda rights at that time.Present—Scudder, P.J., Smith, Carni, Sconiers and Green, JJ.