| People v Brown |
| 2017 NY Slip Op 06821 [153 AD3d 1664] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v DewayneBrown, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Craig P. Schlanger of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered August 25, 2014. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a firearm.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a firearm (Penal Law § 265.01-b). Contrary to defendant'scontention, Supreme Court properly refused to suppress defendant's statements to the police,which included an admission that he accidentally shot himself with a firearm, inasmuch asdefendant was not in custody at the time that he made the statements and Mirandawarnings therefore were not required (see generally Miranda v Arizona, 384 US 436, 467[1966]). "In determining whether a defendant was in custody for Miranda purposes, '[t]hetest is not what the defendant thought, but rather what a reasonable [person], innocent of anycrime, would have thought had he [or she] been in the defendant's position' " (People v Kelley, 91 AD3d 1318,1318 [2012], lv denied 19 NY3d 963 [2012], quoting People v Yukl, 25 NY2d585, 589 [1969], cert denied 400 US 851 [1970]). Here, the evidence at the suppressionhearing established that defendant voluntarily sought medical treatment at a walk-in clinic for agunshot wound to his leg. The treatment provider reported defendant's gunshot injury to police,as required by Penal Law § 265.25, and the provider instructed defendant to waitfor the police to arrive. A detective responded to the clinic and briefly questioned defendant in apatient room where defendant was waiting with his mother. The detective testified that hethought that defendant was a victim, rather than a suspect, and thus his initial questions wereinvestigatory in nature. During the questioning, defendant was not placed under arrest, and wasnot handcuffed or otherwise restrained. Under these circumstances, we conclude that "areasonable person in defendant's position, innocent of any crime, would not have believed that heor she was in custody, and thus Miranda warnings were not required" (People v Lunderman, 19 AD3d1067, 1068-1069 [2005], lv denied 5 NY3d 830 [2005]; see People vThomas, 292 AD2d 549, 550 [2002]). The fact that the detective's questions becameaccusatory after he observed gunpowder burns on defendant's leg, the presence of which seemedto conflict with defendant's initial statement that he did not see the person who shot him, did notrender the questioning custodial in nature (see People v Davis, 48 AD3d 1086, 1087 [2008], lv denied10 NY3d 861 [2008]). Present—Centra, J.P., Peradotto, NeMoyer, Troutman andWinslow, JJ.