| People v Brown |
| 2012 NY Slip Op 00832 [92 AD3d 455] |
| February 7, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronald Brown, Appellant. |
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Ronald Brown, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (John Cataldo, J., at suppression hearing;Thomas Farber, J., at jury trial and sentencing), rendered March 19, 2009, convicting defendantof criminal possession of a weapon in the second degree, and sentencing him, as a second felonyoffender, to a term of seven years, unanimously affirmed.
The hearing court properly denied defendant's suppression motion in all respects. During alawful traffic stop, an officer asked defendant if there was anything in the car the officer shouldknow about, and, after an initial denial, defendant admitted he possessed marijuana. Thisstatement was not subject to suppression for lack of Miranda warnings, becausedefendant was not in custody for Miranda purposes (see Berkemer v McCarty,468 US 420, 436-440 [1984]; People v Bennett, 70 NY2d 891 [1987]; People v Feili, 27 AD3d 318[2006], lv denied 6 NY3d 894 [2006]). The stop was not unduly prolonged, and theofficer's repetition of the question did not transform the inquiry into custodial interrogation.
Defendant did not preserve his argument concerning the possibility that he had been takeninto custody under an outstanding bench warrant before he made the statement, and we decline toreview it in the interest of justice. As an alternative holding, we find that the hearing evidenceshows that defendant made the statement before the officer told him about the open warrant.
Defendant's claims of ineffective assistance of counsel, including those raised in his pro sebrief, are not reviewable on direct appeal and would require a further record to be developed byway of a CPL 440.10 motion (see People v Love, 57 NY2d 998 [1982]). On the existingrecord, to the extent it permits review, we find that defendant received effective assistance underthe state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];see also Strickland v Washington, 466 US 668 [1984]). In particular, defendant assertsthat his counsel should have moved to reopen the suppression hearing based on trial testimonyallegedly suggesting that the officer told defendant about the open warrant before defendantadmitted possessing marijuana. However, the trial testimony in this regard was ambiguous atbest. Regardless of whether counsel should have moved to reopen the hearing, defendant has not[*2]established that reopening would have led to suppression ofthe statement, or that even if counsel obtained suppression of the statement on Mirandagrounds, he would have also obtained suppression of the pistol that was recovered as a result ofthe statement (cf. United States v Patane, 542 US 630 [2004]).
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). The circumstances, viewed in light of the statutorypresumption of possession by all occupants of a vehicle (see Penal Law § 265.15[3]), support the inference that defendant knowingly possessed the pistol found in the car.
The trial court appropriately exercised its discretion in denying defendant's request for anadverse inference instruction concerning the People's failure to preserve taped police radiocommunications. There was no bad faith or lack of diligence on the part of the People, anddefendant was not prejudiced in that he was furnished with the Sprint report, which afforded himsufficient opportunity for impeachment (see e.g. People v Marengo, 276 AD2d 358, 359[2000], lv denied 95 NY2d 936 [2000]). Defendant's claim that the actual recordingwould have had additional value is speculative. For the same reasons, we also reject defendant'sargument that the hearing court should have drawn an adverse inference from the loss of thetapes. Concur—Mazzarelli, J.P., Andrias, DeGrasse, Richter and Abdus-Salaam, JJ.