| People v Dangerfield |
| 2016 NY Slip Op 04524 [140 AD3d 1626] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Monzell Dangerfield, Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.),rendered January 7, 2011. The judgment convicted defendant, upon his plea of guilty, ofburglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of burglary in the second degree (Penal Law § 140.25 [2]). As thePeople correctly concede, defendant did not waive the right to appeal. Although a waiverof the right to appeal was briefly addressed by County Court as a condition of the plea,there was no colloquy with defendant and he did not waive that right (see generally People v Lopez,6 NY3d 248, 256 [2006]).
We nevertheless reject defendant's contention that the court erred in refusing tosuppress identification evidence on the ground that the showup identification procedurewas unduly suggestive. Defendant was identified by the owner of the home, whoobserved defendant leave his house and enter a green minivan. The owner then followedthe minivan and informed the 911 operator of the minivan's location. Although the ownerlost sight of the minivan at a particular location, a police officer who was responding tothe report of the burglary observed a minivan fitting the description given by the ownerand driven by a man who fit the description of the person seen leaving the owner's home.Following a high-speed chase, which ended when the minivan entered a drainage ditch,defendant was apprehended. The showup identification occurred at a shopping centerone hour after the burglary was reported. Although the distance between the shoppingcenter and the scene of the crime is not set forth in the record, the record establishes thatthe shopping center is located on the street where defendant was first observed by theofficer, and which the court described as being "two streets over" from the scene of thecrime. We therefore conclude that the People established that the showup identificationprocedure was conducted in "geographic and temporal proximity to the crime"(People v Ortiz, 90 NY2d 533, 537 [1997]; see People v Harris, 57 AD3d 1427, 1428 [2008], lvdenied 12 NY3d 817 [2009]). Also contrary to defendant's contention, theidentification procedure was not rendered unduly suggestive because he was in handcuffsand in the presence of a uniformed police officer (see People v Johnson, 122 AD3d 1338, 1339 [2014], lvdenied 25 NY3d 1166 [2015]).We reject defendant's further contention that he did not voluntarily waive hisMiranda rights and thus that the court erred in refusing to suppress his statementto the police on that ground. " 'The evidence at the suppression hearingestablishes that, after receiving . . . Miranda warnings, defendantindicated that he understood his [Miranda] rights and agreed to speak with the[police]' " (People vLewis, 93 AD3d 1264, 1265 [2012], lv denied 19 NY3d 963 [2012]).The video of the interrogation establishes that defendant stated that he understood hisrights and, when asked [*2]whether he wished to speak tothe police, he nodded in the affirmative and spoke to them. "It is well settled. . . that an explicit verbal waiver is not required; an implicit waiver maysuffice and may be inferred from the circumstances" (People v Harris, 129 AD3d 1522, 1523 [2015] [internalquotation marks omitted]). Even assuming, arguendo, that defendant was under theinfluence of marihuana during the interview, "the evidence . . . establishesthat defendant 'was not intoxicated to such a degree that he was incapable of voluntarily,knowingly, and intelligently waiving his Miranda rights' " (People vJohn, 288 AD2d 848, 848 [2001], lv denied 97 NY2d 705 [2002]). Further,"there is no evidence in the record to support the contention of defendant that the injurieshe [allegedly] sustained in the motor vehicle accident prevented him from knowingly andvoluntarily waiving his Miranda rights" (id.). Present—Whalen,P.J., Carni, NeMoyer, Troutman and Scudder, JJ.