| People v Buchanan |
| 2016 NY Slip Op 00800 [136 AD3d 1293] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jacob C. Buchanan, Appellant. (Appeal No.1.) |
Timothy P. Donaher, Public Defender, Rochester (William Clauss of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joanne M.Winslow, J.), rendered August 28, 2012. The judgment convicted defendant, upon hisplea of guilty, of robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of robbery in the first degree (Penal Law § 160.15[4]). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea ofguilty of burglary in the second degree (§ 140.25 [2]). In appeal No. 3,defendant appeals from a judgment convicting him upon his plea of guilty of robbery inthe first degree (§ 160.15 [3]). All of the pleas were entered during one pleaproceeding, following the denial of defendant's suppression motion concerning all of thecharges. Defendant contends that Supreme Court erred in denying his suppressionmotion inasmuch as his inculpatory statements to the police were involuntarily made andnot attenuated from his unlawful arrest. We reject that contention.
Indeed, "[t]he choice to speak where speech may incriminate is constitutionally thatof the individual, not the government, and the government may not effectively eliminateit by any coercive device" (People v Thomas, 22 NY3d 629, 642 [2014]). We note,however, that " '[t]he voluntariness of a confession is to be determined byexamining the totality of the circumstances surrounding the confession' " (People v Peay, 77 AD3d1309, 1309-1310 [2010], lv denied 15 NY3d 955 [2010]; seeThomas, 22 NY3d at 641-642). Here, an officer who interviewed defendant testifiedat the suppression hearing that defendant was not threatened or promised anything inorder for him to waive his Miranda rights, and the officer did not promisedefendant that, if he cooperated, the officer would help him gain admission into a DrugCourt program. The court did not credit defendant's testimony that the officers whoquestioned him promised to help him "with the judge and something about Drug Court,"and we give deference to the court's resolution of issues of credibility (see generallyPeople v Prochilo, 41 NY2d 759, 761 [1977]; People v Williams, 115 AD3d 1344, 1345 [2014]). In anyevent, even crediting defendant's testimony, we agree with the People that the statementsby the officers were not deceptive or coercive (see People v Sabines, 121 AD3d 1409, 1411 [2014], lvdenied 25 NY3d 1171 [2015]; see generally Thomas, 22 NY3d at 641-642).We conclude that the People proved beyond a reasonable doubt that defendant'sstatements were not products of coercion but rather were the "result of a 'free andunconstrained choice' " by defendant (Thomas, 22 NY3d at 641).
We agree with the People that, even assuming that defendant was illegally arrested,"defendant's statements were sufficiently attenuated from the illegal arrest to be purgedof the taint created by the illegality" (People v Russell, 269 AD2d 771, 772[2000]). "[A] confession that is made after an arrest without probable cause is not subjectto suppression if the People adequately demonstrate that the inculpatory admission was'attenuated' from the improper detention; in other words, it was 'acquired by meanssufficiently distinguishable from the arrest to be purged of the illegality' " (People v Bradford, 15 NY3d329, 333 [2010]). In determining whether there has been attenuation, courts mustconsider "the temporal proximity of the arrest and the confession, the presence ofintervening circumstances and, particularly, the purpose and flagrancy of the officialmisconduct" (id. at 333 [internal quotation marks omitted]).
Here, defendant was not interrogated until almost 2