| People v May |
| 2012 NY Slip Op 07472 [100 AD3d 1411] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Donald M.May, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered May 13, 2011. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree, criminal possession of a controlled substance in thethird degree (three counts), criminal possession of a controlled substance in the fourth degree,criminally using drug paraphernalia in the second degree (two counts) and criminal possession ofa weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, interalia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]),defendant contends that Supreme Court erred in denying his motion to suppress certain physicalevidence because he was subjected to an unlawful seizure. We reject that contention. Evenassuming, arguendo, that defendant was unlawfully detained when the police positioned theirvehicle perpendicular to defendant's vehicle in a parking lot, we conclude that defendant'ssubsequent conduct severed any causal connection between the unlawful detention and thesubsequently-acquired evidence (see People v Rogers, 52 NY2d 527, 533-534 [1981],rearg denied 54 NY2d 753 [1981], cert denied 454 US 898 [1981], reh denied459 US 898 [1982]; see also People v Evans, 289 AD2d 994, 994 [2001], lvdenied 97 NY2d 728 [2002]).
After the police officer approached his vehicle, defendant drove backward over a concreteparking barrier and into the roadway, evaded a police vehicle stopped across the roadway bymaneuvering his vehicle over the curb of the roadway and onto several lawns, and sped away atapproximately twice the posted speed limit. At the very least, defendant's conduct constituted aviolation of the misdemeanor of reckless driving (Vehicle and Traffic Law § 1212), orreckless endangerment in the second degree (Penal Law § 120.20). It is well establishedthat "[a] person who is stopped or detained illegally is not immunized from prosecution forcrimes committed during his [or her] detention period" (United States v Garcia-Jordan,860 F2d 159, 160 [1988]; see Rogers, 52 NY2d at 531-532). Here, inasmuch asdefendant's response to the police approach was "unjustified and criminal in nature. . . and unrelated to the initial [allegedly] unlawful action on the part of the police,"suppression of the subsequently-acquired evidence was not required (People v Townes,41 NY2d 97, 102 [1976]; People vEllis, 4 AD3d 877, 878 [2004], lv denied 3 NY3d 639 [2004], lv deniedupon reconsideration 3 NY3d 673 [2004]; cf. People v Felton, 78 NY2d 1063, 1065[1991]).
Contrary to the further contention of defendant, we conclude that the court did not err indetermining, based upon the totality of the circumstances, that he voluntarily consented to thesearch of his residence (see Schneckloth v Bustamonte, 412 US 218, 226 [1973];People v Gonzalez, 39 NY2d 122, 128 [1976]; People v Hyla, 291 AD2d 928,929 [2002], lv denied 98 NY2d 652 [2002]). The fact that defendant was in custody whenhe signed the consent to search form does not require suppression of the evidence seized from hisapartment (see People v McCray, 96AD3d 1480, 1481 [2012]). Defendant contends that, based upon the time recorded on theconsent to search form, the form was signed before the administration of Mirandawarnings, and thus the record establishes that the consent to search form was not voluntarilysigned. However, " '[t]he voluntariness of a consent to search is not vitiated, per se, by the failureto give Miranda warnings to an accused while subject to custodial interrogation' "(id.). In any event, the People presented evidence at the suppression hearing establishingthat the time recorded on the consent to search form was erroneous and that the police did notrequest defendant's consent to search his apartment until Miranda warnings had beenadministered. "It is well settled that [t]he suppression court's credibility determinations andchoice between conflicting inferences to be drawn from the proof are granted deference and willnot be disturbed unless unsupported by the record" (People v Esquerdo, 71 AD3d 1424, 1424 [2010], lv denied14 NY3d 887 [2010] [internal quotation marks omitted]) and, here, we see no basis to disturb thecourt's determination that defendant did not sign the consent form until he had waived hisMiranda rights.
We reject the further contention of defendant that the court erred in refusing to suppress hisstatements on the ground that he was interrogated prior to the administration of Mirandawarnings. Contrary to defendant's contention, the police officer's general statements concerningcooperation were not " 'reasonably likely to elicit an incriminating response' " and thus did notconstitute interrogation (People vBrown, 52 AD3d 1175, 1176 [2008], lv denied 11 NY3d 923 [2009],quoting Rhode Island v Innis, 446 US 291, 301 [1980]; see People v Adams, 244AD2d 897, 898-899 [1997], lv denied 91 NY2d 887 [1998]).
Finally, we conclude that the court did not abuse its discretion in denying defendant's motionto dismiss the indictment in the interest of justice pursuant to CPL 210.40. "Dismissal of anindictment in the interest of justice must be exercised sparingly . . . , that is, only inthose rare cases where there is a compelling factor which clearly demonstrates that prosecution ofthe indictment would be an injustice" (People v Quadrozzi, 55 AD3d 93, 103 [2008], lv denied 12NY3d 761 [2009] [internal quotation marks omitted]; see People v Hudson, 217 AD2d53, 55 [1995], lv denied 87 NY2d 1020 [1996]), and this is not "one of those rare cases inwhich failure to dismiss [the indictment] would constitute an injustice" (People v Hirsch,85 AD2d 902, 902 [1981]). Present—Scudder, P.J., Centra, Peradotto, Lindley andWhalen, JJ.