| People v Jackson |
| 2013 NY Slip Op 01095 [103 AD3d 814] |
| February 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Walter Jackson, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Steven A.Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Warhit, J.), rendered March 4, 2011, convicting him of criminal possession of a weaponin the second degree and unlawful possession of marijuana (two counts), upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after ahearing (Cacace, J.), of those branches of the defendant's omnibus motion which were tosuppress physical evidence and his statements to law enforcement officials.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials isgranted, and a new trial is ordered.
On January 15, 2010, at approximately 9:30 p.m., a police officer on routine patrolobserved a vehicle, occupied by the defendant and two others (hereinafter the defendant'svehicle), parked in a desolate area across from a homeless shelter in Peekskill. Thedefendant's vehicle had its amber warning lights activated, but not its headlights.
The officer parked his patrol vehicle, "nose-to-nose," at a 90 degree angle with thedefendant's vehicle. The officer approached the defendant's vehicle and smelled a strongodor of unburnt marijuana coming from the defendant's vehicle's open window. Theofficer then asked if any of the occupants had "anything illegal." The defendant, who wasseated in the driver's seat, produced a small bag containing marijuana. The officer askedthe defendant to step out of the vehicle "as he was now under arrest for unlawfulpossession of marijuana."
The officer once again approached the defendant's vehicle and continued to smell astrong odor of unburnt marijuana. He requested that the other two occupants exit thevehicle. The officer then conducted a search of the vehicle, and discovered two bags ofmarijuana under the driver's seat. The officer approached the defendant and asked if thebags of marijuana were his, and the defendant replied "yes," and "that's all there is." Theofficer continued to search the defendant's vehicle, whereupon he recovered a gun from abackpack located on the floor of the front passenger [*2]area.
The defendant was transported to the police precinct without having yet been advisedof his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]). Atapproximately 2:00 a.m., on January 16, 2010, the defendant was advised of hisMiranda rights by a detective. After being advised of his rights, the defendantdeclined to speak to the detective. Approximately two hours later, while processing thedefendant, the arresting officer told the defendant that if no one confessed to ownershipof the gun everyone inside the defendant's vehicle would be "equally charged." Thedefendant requested an opportunity to speak with a detective. At approximately 4:20a.m., the defendant was advised of his Miranda rights for the second time.Thereafter, in a videotaped statement, the defendant admitted that the gun belonged tohim.
The defendant moved, inter alia, to suppress the physical evidence and his statementsto the police. After a hearing, those branches of his motion were denied. Thereafter, thedefendant was convicted, upon a jury verdict, of criminal possession of a weapon in thesecond degree and two counts of unlawful possession of marijuana.
The defendant's admission that he was the owner of the two bags of marijuana foundunder the driver's seat should have been suppressed. The Miranda warnings areprocedural safeguards intended to secure the Fifth Amendment privilege againstself-incrimination by protecting individuals from the informal compulsion exerted by lawenforcement officials during custodial questioning (see Miranda v Arizona, 384US at 444, 461; People vPaulman, 5 NY3d 122, 129 [2005]; People v Berg, 92 NY2d 701, 704[1999]; People vBorukhova, 89 AD3d 194, 211-212 [2011]). "The standard for assessingwhether an individual is in custody for purposes of applying the Miranda rule iswhether a reasonable person innocent of any wrongdoing would have believed that he orshe was free to leave the presence of the police" (People v Borukhova, 89 AD3dat 212; see People v Paulman, 5 NY3d at 129; People v Yukl, 25 NY2d585, 589 [1969], cert denied 400 US 851 [1970]).
Applying this standard here, we find that the evidence presented at the Huntleyhearing (see People v Huntley, 15 NY2d 72 [1965]) supports the defendant'scontention that he was in custody when he admitted to the arresting officer at the sceneof the arrest that the two bags of marijuana found under the seat were his. A reasonableperson innocent of any wrongdoing would not have believed that he or she was free toleave the presence of the police when he made that statement. Thus, the duty toadminister Miranda warnings was triggered prior to his admission to theownership of the two bags of marijuana.
Further, the defendant's statement at the precinct that he was the owner of the gunshould have been suppressed as well. When the defendant was given his initialMiranda warnings, he clearly stated that he wished to remain silent, therebyinvoking his privilege against self-incrimination under the New York State and UnitedStates Constitutions. "If [an] individual indicates in any manner, at any time prior to orduring questioning, that he [or she] wishes to remain silent, the interrogation must cease"(Miranda v Arizona, 384 US at 473-474; see People v Ferro, 63 NY2d316, 322 [1984], cert denied 472 US 1007 [1985]). Here, the arresting officerfailed to "scrupulously honor" the defendant's constitutional rights when he deliberatelyengaged the defendant in conversation for the purpose of inducing the defendant tochange his mind and make an incriminating statement about the ownership of the gun(Miranda v Arizona, 384 US at 479). When the arresting officer told thedefendant that, unless someone confessed to ownership of the gun, all three occupants ofthe car would be charged with its possession, he was engaging in the functionalequivalent of interrogation in that he knew or should have known that his commentswere reasonably likely to elicit an incriminating response (see Rhode Island vInnis, 446 US 291, 301 [1980]; People v Ferro, 63 NY2d at 319, 322; People v Creary, 61 AD3d887, 889 [2009]; People v Kollar, 305 AD2d 295, 297 [2003]). Because thearresting officer's conversation with the defendant constituted impermissibleinterrogation in violation of the defendant's constitutional rights against selfincrimination, the defendant's videotaped statement admitting to ownership of the gun,elicited by that conversation, should have been suppressed (see People v Kollar,305 AD2d at 299). Under the circumstances of this case, the errors in denyingsuppression of the aforementioned statements were not harmless (see People vCrimmins, 36 NY2d 230 [1975]). Therefore, a new trial is required.[*3]
The defendant's remaining contentions arewithout merit. Rivera, J.P., Lott, Roman and Sgroi, JJ., concur.