| People v Perry |
| 2012 NY Slip Op 05594 [97 AD3d 447] |
| July 17, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v O'Brian Perry, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J., at suppression hearing;Maxwell Wiley, J., at jury trial and sentencing), rendered January 20, 2010, convicting defendantof criminal possession of a weapon in the second and third degrees, and sentencing him, as asecond violent felony offender, to an aggregate term of 10 years, unanimously reversed, on thelaw, the motion to suppress defendant's statement granted, and the matter remanded for a newtrial.
Police entered defendant's family's apartment pursuant to a search warrant. The policedetained and handcuffed defendant and his three family members. Defendant was led away fromthe others and asked by the investigating sergeant, without any Miranda warnings, toreveal the location of a weapon so the police would not have to tear up the apartment looking forit. Defendant then provided them the location, and when an officer could not find it, defendantthen directed him to the correct couch where the pistol was hidden.
Defendant was immediately taken to the precinct, and after being booked and processed for20 to 30 minutes, was interrogated by the same investigating sergeant after being advised of andwaiving his Miranda rights. Defendant then admitted that the pistol belonged to him andnot his family members.
Although the People did not seek to introduce the apartment statement, defendant challengedthe admissibility of the precinct statement on the ground that it was tainted by the earlierapartment statement that had been obtained in violation of his Miranda rights. Thehearing court found that both statements were voluntarily made and denied defendant's motion tosuppress the precinct statement.
The hearing court erred when it concluded that the first statement at the apartment wasvoluntarily made because defendant wanted to protect his family by helping the police conductthe search faster. Miranda warnings are required prior to custodial interrogation (see People v Paulman, 5 NY3d122, 129 [2005]). A suspect is in custody when "a reasonable person innocent of anywrongdoing would have believed that he or she was not free to leave" (id.). As defendantwas handcuffed and surrounded by police at the time he gave the incriminating statement at theapartment, he was obviously in custody for Miranda purposes. Moreover, the sergeant'squestioning amounted to interrogation as it was certainly designed and reasonably likely to elicit[*2]incriminating statements pertaining to the contraband thatwas the subject of the search warrant (see id.).
We also conclude that the later Mirandized statement made at the precinct should have beensuppressed as it was obtained as part of a single continuous chain of events, so that the laterwarnings were insufficient to dissipate the taint of the initial violation (see Paulman, 5NY3d at 131). The initial non-Mirandized statement was a result of a conversation initiated bythe sergeant, defendant did not indicate a prior willingness to speak, the same sergeant conductedthe later interrogation at the precinct only a short time later, and the sergeant used the sametheme of protecting defendant's family to elicit both statements. Under these circumstances, therewas no break in defendant's custodial circumstances and both statements were obtained undercircumstances indicating a single continuous chain of events (see People v Kollar, 305AD2d 295, 299 [2003], appeal dismissed 1 NY3d 591 [2004]).
We do not find the error to be harmless.
Defendant did not preserve his argument that the pistol should have been suppressed, and wedecline to review it in the interest of justice. As an alternate holding, we find that the pistol wasadmissible under the inevitable discovery doctrine, and we decline to consider any other issues.Concur—Gonzalez, P.J., Saxe, Sweeny, Acosta and Renwick, JJ.