| People v Dawson |
| 2017 NY Slip Op 03358 [149 AD3d 1569] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v StephenDawson, Also Known as "Shooter Steve," Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered December 3, 2014. The judgment convicted defendant, upon a jury verdict, ofkidnapping in the first degree and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofkidnapping in the first degree (Penal Law § 135.25 [2] [a]) and robbery in the firstdegree (§ 160.15 [4]). As we noted in the appeal by a codefendant, "[t]he chargesarose from an incident in which the victim was held captive, pistol whipped, and then repeatedlyhumiliated, including being forced to lick his own blood from a boot of one of the perpetrators.The perpetrators made a video recording of parts of the incident and posted the recording onsocial media" (People v Woods, 142AD3d 1356, 1357 [2016]).
Contrary to defendant's contention, Supreme Court properly refused to suppress hisstatements to the police. The evidence from the suppression hearing established that policeofficers were searching for the victim after viewing the video recording of him being beaten, andhis family members reported to the police that defendant, who was riding a bicycle in a certainlocation, knew where the victim was being detained. Based on that information, an officerstopped defendant, and said that defendant needed to speak to a detective who was on his way tothat location. Defendant immediately said that he could find the missing person on his own if theofficer would let him go. Shortly thereafter, a detective arrived and told defendant that they weresearching for the victim, and the detective questioned defendant about the victim's whereabouts.Defendant indicated that he would have to walk by the house in which the victim was detained sohe could show the officers where it was but, after they indicated that he would not be released, heagreed to allow the initial officer to drive him in the patrol vehicle. As they drove, he pointed outa house and said that the victim was in it.
As the People correctly concede, defendant was in custody at the time that he spoke to theofficers (see generally People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400US 851 [1970]) and, "[a]s a general rule, a person who is in custody cannot be questionedwithout first receiving Miranda warnings" (People v Doll, 21 NY3d 665, 670 [2013], rearg denied 22NY3d 1053 [2014], cert denied 572 US &mdash, 134 S Ct 1552 [2014], affg 98AD3d 356 [2012]). Nevertheless, we agree with the court that the initial statement, i.e., the onedefendant made before the detective arrived, was spontaneous, inasmuch as it was "in no way theproduct of an interrogation environment [or] the result of express questioning or its functionalequivalent" (People v Harris, 57 NY2d 335, 342 [1982], cert denied 460 US 1047[1983] [internal quotation marks omitted]; see People v Rivers, 56 NY2d 476, 480[1982], rearg denied 57 NY2d 775 [1982]; People v Wearen, 19 AD3d 1133, 1134 [2005], lv denied 5NY3d 834 [2005]). Thus, the court properly refused to suppress that statement.
[*2] Furthermore, the court also properly refused to suppressdefendant's next set of statements, in which he identified the house in which the victim was beingheld. At that time, the police were aware that the victim was being held and were seekinginformation from defendant regarding the victim's location in order to rescue him. "Given thelegitimate concern of the police for the safety of the victim, the questioning of the defendantregarding the victim's . . . whereabouts, without first advising him of hisMiranda rights . . . , was lawful" (People v Boyd, 3 AD3d 535, 536 [2004], lv denied 2 NY3d737 [2004]; see Doll, 98 AD3d at 364; People v Zalevsky, 82 AD3d 1136, 1138 [2011], lv denied19 NY3d 978 [2012], denied reconsideration 19 NY3d 1106 [2012]).
We reject defendant's contention that the evidence is not legally sufficient to support theconviction. Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), and affording them the benefit of every favorableinference (see People v Bleakley, 69 NY2d 490, 495 [1987]), we conclude that theevidence is legally sufficient to establish the elements of the crimes of which defendant wasconvicted (see id.). Furthermore, viewing the evidence in light of the elements of thecrimes as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention that theverdict is against the weight of the evidence (see generally Bleakley, 69 NY2d at495).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Carni,DeJoseph, NeMoyer and Troutman, JJ.