| People v Samuel |
| 2012 NY Slip Op 00846 [92 AD3d 466] |
| February 7, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DerekSamuel, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Phillip Morrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J., at hearings; AnalisaTorres, J., at jury trial and sentencing), rendered June 1, 2010, convicting defendant of robbery inthe first and second degrees, and sentencing him, as a persistent violent felony offender, toconcurrent terms of 20 years to life, unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony. Therecord supports the hearing court's finding that the photo array and lineup were not undulysuggestive. As to each procedure, defendant and the other participants were reasonably similar inappearance, and there was no substantial likelihood that defendant would be singled out foridentification (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US833 [1990]).
The court also properly denied defendant's motion to suppress statements. There was noviolation of Payton v New York (445 US 573 [1980]). The police never entereddefendant's apartment. Instead, at the request of the police, defendant's parole officer askeddefendant to come into the hallway outside his apartment, and this procedure was permissible(see People v Wallace, 250 AD2d 398 [1998]).
There is no basis to disturb the hearing court's finding that defendant's initial interview,which was not preceded by Miranda warnings, was not custodial. A reasonable innocentperson in defendant's position would not have thought he was in custody (see People vYukl, 25 NY2d 585 [1969], cert denied 400 US 851 [1970]; see also Stansbury vCalifornia, 511 US 318 [1994]). Defendant agreed to accompany the police to the precinct,where he remained in an interview room. During the period that preceded Mirandawarnings, the police did not restrain defendant in any way or do anything to convey that he wasnot free to leave (see People vDillhunt, 41 AD3d 216 [2007], lv denied 10 NY3d 764 [2008]).
Even assuming a Payton or Miranda violation, or both, there was sufficientattenuation so that defendant's later statements were not tainted. Defendant's made hispost-Miranda statements after a significant time lapse, and he made no incriminatingstatements during the pre-Miranda interview (see People v White, 10 NY3d 286, 291 [2008], cert denied555 US 897 [2008]). Furthermore, there was nothing flagrant about the alleged Paytonviolation. Defendant's videotaped interview was even further attenuated from any Paytonor Miranda [*2]violation, since it was made at a differentlocation to a different interviewer. In any event, even assuming any error in the admission ofeither of the two statements, the error was harmless (see People v Crimmins, 36 NY2d230 [1975]), in light of the overwhelming evidence of defendant's guilt and the generallyexculpatory nature of his statements.
We have considered and rejected defendant's remaining claims, including his challenges tothe admissibility of recordings of phone calls he made while in prison. Concur—Saxe, J.P.,Friedman, Catterson, Freedman and Manzanet-Daniels, JJ.