| People v Grant |
| 2012 NY Slip Op 04362 [96 AD3d 779] |
| June 6, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Phillip Grant, Appellant. |
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Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Steven A.Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler,J.), rendered September 18, 2006, convicting him of murder in the second degree and criminalpossession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of those branches of the defendant'somnibus motion which were to suppress certain statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was not deprived of the effective assistance of counsel. Considering theevidence, the law, and the circumstances of this case, viewed in totality, trial counsel providedmeaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998];People v Baldi, 54 NY2d 137, 147 [1981]; People v Samms, 83 AD3d 1099, 1100 [2011]).
The Supreme Court, after a Huntley hearing (see People v Huntley, 15 NY2d72 [1965]), properly suppressed only one of the statements made by the defendant to lawenforcement officials. The defendant's first statement, denominated as Statement No. 1 by theSupreme Court, was made by the defendant in response to a police officer's investigatory inquiry,and was not the result of custodial interrogation, since a reasonable person in the defendant'sposition, innocent of any criminal wrongdoing, would not have believed that he or she was inpolice custody at the time he or she made the statement (see People v Yukl, 25 NY2d 585[1969], cert denied 400 US 851 [1970]). The defendant does not challenge the admissioninto evidence of what was denominated by the Supreme Court as Statement No. 2, whichconsisted of the defendant's pedigree information.
The first part of the statement that the defendant made when he was in the back seat of apolice car, denominated as Statement No. 3 by the Supreme Court, was uttered by the defendantspontaneously and voluntarily, and was not the result of an interrogation. "[V]olunteered orspontaneous statements made by suspects who were plainly in custody and had not been giventhe Miranda [see Miranda v Arizona, 384 US 436, 444 (1966)] warnings areadmissible" (People v Kaye, 25 NY2d 139, 144 [1969]). To the extent that the secondportion of Statement No. 3 was made in response to a police officer's question, we agree with theSupreme Court that the brief inquiry was merely [*2]intended toclarify the defendant's spontaneous statement which immediately preceded it, and did notconstitute a custodial interrogation (seePeople v Santiago, 77 AD3d 422 [2010]; People v Taylor, 57 AD3d 327, 328 [2008]).
The defendant failed to preserve for appellate review his arguments that, in addition tosuppressing what it denominated as Statement No. 4, the Supreme Court should also havesuppressed, as fruit of the poisonous tree, two items of physical evidence which were discoveredas a result of that statement, since he failed to raise that issue in connection with his omnibusmotion or at the Huntley hearing (see CPL 470.05 [2]). In any event, bothStatement No. 4 and the two items of physical evidence were admissible into evidence pursuantto the inevitable discovery exception to the exclusionary rule, which permits a court to deny thesuppression of evidence if it can be shown by "a very high degree of probability that the evidencesought to be suppressed would inevitably have been discovered irrespective of the initial wrong"(People v Stith, 69 NY2d 313, 318 [1987] [citation and internal quotation marksomitted]).
Statements denominated by the Supreme Court as Statement Nos. 5 through 10 were allmade at the police precinct station house, and Statement Nos. 6 through 10 were all made afterthe administration of Miranda warnings. Statement No. 5 was spontaneously volunteeredand, thus, not subject to suppression. Moreover, the totality of the circumstances supports afinding that Statement Nos. 6 through 10 were made voluntarily and, therefore, were not subjectto suppression (see People vPaulman, 5 NY3d 122, 130-131 [2005]; People v DeCampoamor, 91 AD3d 669 [2012], lv denied18 NY3d 993 [2012]).
We reject the defendant's speculative contention that, despite their unequivocal avowalsotherwise, certain prospective jurors could not be fair and impartial. It is for the trial court, fromexamination of the juror, including his or her appearance and demeanor, to determine fitness andcompetence to serve fairly and impartially (see People v Shulman, 6 NY3d 1, 27 [2005], cert denied547 US 1043 [2006], citing People v Johnson, 94 NY2d 600 [2000]; People vCarolin, 115 NY 658, 659 [1889]). The denial of the defendant's challenges to prospectivejurors for cause was not an improvident exercise of discretion. Moreover, the Supreme Courtproperly curtailed the defendant's repetitive and irrelevant questioning of prospective jurors(see CPL 270.15 [1] [b]).
The defendant's motion to change venue from Westchester County, and his motion to havethe location of the trial changed within Westchester County due to the proximity of the crimescene to the courthouse, were both properly denied (see People v Cahill, 2 NY3d 14, 38-39 [2003]; People vMcKenzie, 281 AD2d 236 [2001]).
The defendant's remaining contentions are without merit. Angiolillo, J.P., Eng, Lott andCohen, JJ., concur.