| People v Wilson |
| 2017 NY Slip Op 04985 [151 AD3d 1836] |
| June 16, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Darrien E.Wilson, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.), renderedJanuary 7, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal sexualact in the first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toMonroe County Court for further proceedings in accordance with the following memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sexual actin the first degree (Penal Law § 130.50 [3]). We reject defendant's contention thatCounty Court erred in refusing to suppress his statements to the police. Defendant was not incustody when he made the statements, and thus the police were not required to advise defendantof his Miranda rights (see People v Lunderman, 19 AD3d 1067, 1068-1069 [2005], lvdenied 5 NY3d 830 [2005]). On two occasions, police officers in plain clothes intervieweddefendant at his home and in the surrounding area. During those interviews, defendant wascooperative and voluntarily agreed to speak with the police. Further, defendant's mother waspermitted to participate in the interviews, which lasted under an hour. Under these circumstances,"a reasonable person in defendant's position, innocent of any crime, would not have believed thathe or she was in custody, and thus Miranda warnings were not required" (id. at1068; see People v Thomas, 292 AD2d 549, 550 [2002]).
We likewise conclude that Miranda warnings were not required before twosubsequent interviews that took place at the police station, inasmuch as they also werenoncustodial (see Lunderman, 19 AD3d at 1069; People v Andrews, 13 AD3d 1143, 1144-1145 [2004]; People vBlake, 177 AD2d 636, 637 [1991], lv denied 79 NY2d 853 [1992]). Defendantvoluntarily went to the police station on those occasions and was driven to and from the stationby his mother. He was told that he was not under arrest and that he would be able to leave withhis mother. Additionally, his mother was invited to participate in the interviews, which wereshort in duration, each lasting about half an hour.
We further reject defendant's contention that his statements should have been suppressedbecause he did not have the intellectual capacity to make voluntary statements. A "defendant'simpaired intelligence is but one factor to be considered in the totality of circumstancesvoluntariness analysis where, as here, there is no evidence of mental retardation 'so great as torender the accused completely incapable of understanding the meaning and effect of [the]confession' " (People v Marx, 305 AD2d 726, 728 [2003], lv denied 100NY2d 596 [2003], quoting People v Williams, 62 NY2d 285, 289 [1984]).
We agree with defendant, however, that the court erred in failing to determine whether heshould be afforded youthful offender status (see People v Rudolph, 21 NY3d 497, 501 [2013]). Defendant wasconvicted of a sex offense enumerated in CPL 720.10 (2) (a) (iii), and the court therefore wasrequired " 'to determine on the record whether . . . defendant is an eligibleyouth by [*2]considering the presence or absence of the factorsset forth in CPL 720.10 (3)' " (People v Dukes, 147 AD3d 1534, 1535 [2017], quoting People v Middlebrooks, 25 NY3d516, 527 [2015]). Because the court failed to make such a determination, we hold the case,reserve decision, and remit the matter to County Court to make and state for the record "adetermination of whether defendant is a youthful offender" (Rudolph, 21 NY3d at 503).Present—Centra, J.P., Peradotto, Carni, NeMoyer and Curran, JJ.