| People v Baez |
| 2012 NY Slip Op 03930 [95 AD3d 654] |
| May 22, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Carlos Baez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Matthew T. Murphy of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J., at suppression hearing;Roger S. Hayes, J., at jury trial and sentencing), rendered December 11, 2009, convictingdefendant of criminal possession of a weapon in the third degree and sentencing him, as a secondfelony offender, to a term of two to four years, affirmed.
Defendant claims that the motion court should have suppressed his self-incriminatingresponse to police questioning because he was not given Miranda warnings. During atraffic stop, police officers ordered the vehicle's five occupants to get out and gather behind thevehicle after the officers observed defendant, who was sitting in the rear, reach into the seatpocket in front of him and manipulate an object. An officer retrieved a gravity knife from the seatpocket and, without first administering Miranda warnings, threatened that unless theknife's owner came forward, he could arrest the entire group. Defendant then admitted that theknife was his.
The court denied defendant's motion to suppress the confession, finding that he "was not yetin custody for Miranda purposes" when he confessed and that questioning the group didnot constitute an interrogation. We find that defendant was subjected to a custodial interrogationand accordingly should have received Miranda warnings (see Miranda v Arizona,384 US 436, 444 [1966]). The standard for determining if a suspect is "in custody" when makinga statement is "whether a reasonable person, innocent of any crime, would have felt free to leave"(People v Harris, 48 NY2d 208, 215 [1979]). When he confessed, defendant was one offive people who had first been ordered to get out of their car and stand behind it. An officerapproached the group while holding the gravity knife he had recovered and threatened them withthe possibility of arrest if the knife's owner did not identify himself. Under these circumstances,no reasonable person would have believed that the police had not restricted his or her freedom ofmovement and that he or she was free to leave.
The concurrence does not consider the officer's statement as a threat because he said he"could" arrest the group instead of promising that he "would" arrest them, but we do not viewthis distinction as material. Any reasonable person in defendant's circumstances would haveperceived the statement as coercive.[*2]
Moreover, the police officer's threat to arrest the entiregroup if the owner did not come forward was the functional equivalent of interrogation underMiranda, given that the police knew or should have known that the statement "[was]reasonably likely to elicit an incriminating response" (People v Ferro, 63 NY2d 316, 322[1984], cert denied 472 US 1007 [1985] [internal quotation marks omitted]; see People v Creary, 61 AD3d887, 889 [2009]). In Creary, the defendant was a passenger in a car from which thepolice recovered a gun (61 AD3d at 888). Before the defendant received Mirandawarnings, he confessed to an officer that the gun was his after the officer advised him that, unlessthe police learned who owned the gun, they would charge all the car's occupants with itspossession (id. at 888-889). The court ruled that the confession should have beensuppressed because the officer's statement amounted to interrogation (id. at 889).
The concurrence views the officer's question to the group as "permissible clarifying inquiry"as opposed to interrogation, but it overlooks that the officer coupled the question withintimidation by threatening arrest. Thus, the questioning was designed not merely to clarify thesituation but also to elicit defendant's inculpatory response (see People v Bastian, 294AD2d 882, 884 [2002], lv denied 98 NY2d 694 [2002]; People v Santarelli, 268AD2d 603, 604 [2000], lv denied 94 NY2d 952 [2000]; cf. People v Maldonado,184 AD2d 590, 590 [1992]).
However, reversal is unnecessary since at trial the People presented overwhelming proof ofdefendant's guilt, including the knife retrieved from the seat pocket defendant had reached intoand defendant's recorded admission, during a phone call he made while incarcerated, that he hadbeen arrested because he "had a punk-ass knife in the car." In light of this evidence, the erroneousadmission of the defendant's incriminating statement at the scene was harmless error (seePeople v Crimmins, 36 NY2d 230 [1975]; People v Paulman, 5 NY3d 122, 134 [2005]).Concur—Renwick, Freedman and Manzanet-Daniels, JJ.
Mazzarelli, J.P., and Andrias, J., concur in a separate memorandum by Mazzarelli, J.P., asfollows: I agree with the majority that defendant's conviction should be affirmed. However, Idisagree that defendant's statement that he owned the gravity knife should have been suppressed.Further, I do not believe that the issue needs to have been reached by the majority.
The police testimony at the suppression hearing can be summarized as follows. OnDecember 27, 2008, at approximately 1:30 a.m., three police officers were in uniform and onroutine patrol in their unmarked vehicle in the vicinity of 110th Street in Manhattan. There theyobserved a car rapidly passing them at about 30-50 miles per hour, changing lanes withoutsignaling, and running through a red light. The officers pulled the car over and, as theyapproached, an officer observed that three or four people in the vehicle were moving from side toside, reaching, looking at each other and making a lot of hand movements. One of the officers[*3]saw defendant, who was sitting in the rear passenger-sideseat, reach forward with both hands towards the pocket that was attached to the back side of thecar's front seat. Another officer saw defendant placing something in or taking something out ofthe seat pocket. Fearing for his safety, the officer ordered the occupants out of the car.
After the occupants were removed from the car, defendant was patted down and then thegroup was told to step to the back of the car. One of the officers pointed his flashlight at the seatpocket in front of where defendant had been sitting and saw a knife. The officer was able to seethe knife without touching the pocket, because the pocket was open about three to four inches.After he removed the knife from the car, the officer opened it and concluded that it was a gravityknife. The officer went to the rear of the car and asked the group who owned the knife, tellingthem that "[u]nless somebody claims responsibility for the knife, you can all be arrested."Defendant then acknowledged that he owned the knife and was arrested. The vehicle's owner andother occupants were allowed to leave in the car. The police did not issue any traffic tickets to thedriver of the vehicle.
The only respect in which the testimony of the defense witnesses differed materially from thepolice testimony concerned what the officer said to the car occupants while holding the knife.According to the driver of the car and one of her passengers, the officer said that if no oneacknowledged ownership of the knife, then everyone was "going to jail." However, the hearingcourt credited the testimony of the police witnesses as a whole. It declined to suppressdefendant's statement that the gravity knife belonged to him, finding that he was not in custodyfor Miranda purposes.
Prior to an interrogation, Miranda warnings must be given to any person who "hasbeen taken into custody or otherwise deprived of his freedom of action in any significant way"(Miranda v Arizona, 384 US 436, 444 [1966]). "Custody" is "de facto arrest" (Peoplev Hicks, 68 NY2d 234, 239-240 [1986]. The standard for determining whether a person is incustody, for purposes of whether Miranda warnings must be administered, is "[if] areasonable man, innocent of any crime" would have considered himself to be in custody (id.at 240 [internal quotation marks omitted]). Under this standard, a person can be found to befree of custody even if he is interviewed at a police station (see People v Yukl, 25 NY2d585, 589 [1969]). Further, the fact that the person was "advised" to accompany the policesomewhere, rather than "requested" or "invited" to come, does not necessarily mean that he wasin custody, because "[a]n assumption that one is required to cooperate with the police can hardlybe equated with an arrest; every citizen has a duty to assist police officers up to the point ofself-incrimination" (id. at 590, quoting Hicks v United States, 382 F2d 158 [DCCir 1967]).
It is important to note that police roadside questioning of a "seized" motorist during a trafficstop does not by itself constitute custodial interrogation (see People v Alls, 83 NY2d 94,99 [1993]). This is so even though a traffic stop significantly curtails the freedom of action of thedriver and passengers of a detained vehicle, and "few motorists would feel free either to disobeya directive to pull over or to leave the scene of a traffic stop without being told they might do so"(Berkemer v McCarty, 468 US 420, 436 [1984]). Rather, roadside detentions have beenheld to be noncustodial, and reasonable initial interrogation attendant thereto has been held to bemerely investigatory (see People vGutierrez, 13 AD3d 268, 269 [2004], lv denied 4 NY3d 831 [2005]; People v Williams, 81 AD3d 993[2011], lv denied 16 NY3d 901 [2011]; People v Mathis, 136 AD2d 746, 748[1988], lv denied 71 NY2d 899 [1988]).
Because the initial direction of defendant and the others to stand behind the car they had[*4]been traveling in was incidental to the traffic stop, defendantand his companions were not in custody for Miranda purposes merely by dint of theirdetention there. Further, defendant does not argue that his freedom was restrained by any act of"official force that is normally associated with custody," such as handcuffing or drawing ofweapons (People v Morales, 129 AD2d 440, 443 [1987]). Rather, he limits his argumentto the contention that custody began when the police collectively asked the group who owned thegravity knife. However, a reasonable, innocent person would not have believed that he was underthe functional equivalent of arrest at that point. To the contrary, the question itself expresslystated that the entire group, not just defendant, was subject to arrest only if nobody spokeup. Further, as the majority has not set aside the court's credibility findings, it is bound by thepolice version of the testimony that the car occupants were told that failure to confess toownership of the knife "can" lead to the arrest of all of the vehicle's occupants. Somehow, themajority characterizes this statement as a "threat" and as "intimidation." However, such anequivocal statement does not rise to the level of coercion that would be necessary to convince aninnocent person that he was not free to leave (contrast People v Reyes, 77 AD3d 509 [2010] [defendant found tohave been in custody for Miranda purposes where police told him they had a warrant forhis arrest]).
Nor did the question constitute an interrogation designed to elicit an inculpatory statementfrom the defendant (see People v Huffman, 41 NY2d 29, 33 [1976]). Mirandawarnings are only required where "criminal events at the crime scene have been concluded andthe situation no longer requires clarification of the crime or its suspects" (People vSoto, 183 AD2d 926, 927 [1992] [emphasis added], citing Huffman, 41 NY2d at 34).Here, while the police could reasonably have concluded that a crime had been committed, theyasked the question because they genuinely did not know who of the five people in front of themhad committed it. Accordingly, the question did not cross the line from permissible clarifyinginquiry to coercive interrogation (see People v Velasquez, 267 AD2d 64 [1999], lvdenied 94 NY2d 886 [2000] [no Miranda warnings necessary in connection with ageneral question, addressed to a group of individuals removed from a vehicle, regardingownership of a gun found therein]; People v Nesby, 161 AD2d 246 [1990], lv denied76 NY2d 793 [1990] [where police were responding to burglary call and encountered aperson inside an apartment which was open and had a broken lock, asking the person what hewas doing there was not an interrogation that required Miranda warnings]). People v Creary (61 AD3d 887[2009]), on which the majority relies, is readily distinguishable. There, when the interrogationtook place the defendant and the two other passengers in his vehicle had already been arrestedand taken to the station house. Additionally, the defendant was interrogated separately from theother suspects. Under those circumstances, not only was the defendant in a more vulnerable stateof mind than defendant here and thus more likely to inculpate himself, but the police were notdealing with sorting out an active crime scene. Most importantly, in Creary the policeexplicitly stated that they "would" charge all three suspects if the defendant did not confess toowning the gun in question. Again, this contrasts with the instant case, where the police merelystated that all of the suspects "can" be arrested if nobody concedes ownership of the gravityknife.
Of course, the majority agrees that the admissibility of defendant's statement was renderedacademic by the harmless error doctrine as there is overwhelming evidence of defendant's guilt.Nevertheless, by addressing the Miranda issue, the majority has unnecessarily forced astrictly theoretical debate in which it misapprehends the settled law. The better practice in caseswhere, as here, there is overwhelming evidence of guilt, is to avoid a distracting, time-[*5]consuming and speculative discussion. After all, courts aresupposed to refrain from passing on academic, hypothetical, moot, or otherwise abstractquestions (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980]). Here, themajority has ignored that "fundamental principle of our jurisprudence" (id. at 713).