| People v Miller |
| 2018 NY Slip Op 01358 [159 AD3d 1053] |
| March 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Miller, Appellant. |
Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), forappellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered April 3, 2015, upon a verdict convicting defendant of the crime of aggravated cruelty toanimals.
In March 2014, investigators with the Ulster County Society for the Prevention of Cruelty toAnimals (hereinafter SPCA) and county law enforcement officials arrived at defendant'sresidence in response to a report that a dog had been shot at the property. Upon being questionedabout the report, defendant claimed that a stray dog had wandered onto his property and beganfighting with his roommate's dog, as a result of which the stray dog had been seriously wounded.When asked by an investigator if he had contacted a veterinarian, defendant indicated that he hadnot, adding that the dog's injuries were so significant that he shot the dog to put it out of itsmisery. Defendant was then handcuffed and placed in a vehicle with two SPCA investigators,where he was further questioned and again admitted that he had shot the dog and claimed that theshooting was a mercy killing. When one of the investigators suggested that a physicalexamination of the dog's remains could substantiate defendant's claims, defendant offered to usea backhoe that was situated on his parents' neighboring property to exhume the dog. Defendantwas immediately uncuffed and released from the vehicle and, after gasoline was procured andprovided to defendant, he retrieved the backhoe from where it was parked and engaged it tounearth a canvas bag that contained the dog's remains. Law enforcement officials thereafter tookpossession of the remains and departed the premises.
[*2] Eight days later, defendant was arrested and charged with aggravated cruelty to animals.Prior to trial, he moved to suppress his statements to law enforcement officials, as well as thephysical evidence seized. Following a hearing, County Court ruled that defendant's initialstatements were voluntary and not the product of custodial interrogation, but found thatdefendant was in custody when he was handcuffed and placed in the SPCA vehicle and, becauseno adequate Miranda warnings were given, the statements that he made while in thevehicle were inadmissible. The court further found that the physical evidence of the dog'sremains was admissible on the ground that, among other things, defendant had voluntarilyconsented to the search. At the conclusion of the ensuing jury trial, defendant was found guilty ascharged and sentenced to one year in jail. Defendant now appeals, solely challenging the denialof that part of his motion that sought to suppress the physical evidence.
Because defendant voluntarily consented to the search that led to the discovery of the dog'sremains, we affirm. Whether consent has been voluntarily given is a question of fact to bedetermined based on the totality of the circumstances (see Schneckloth v Bustamonte,412 US 218, 227 [1973]; People v Gonzalez, 39 NY2d 122, 128-129 [1976]; People v Williford, 124 AD3d1076, 1078 [2015], lv denied 25 NY3d 1209 [2015]). "Consent can be established byconduct as well as words" (People vBunce, 141 AD3d 536, 537 [2016] [internal quotation marks, brackets and citationsomitted], lv denied 28 NY3d 969 [2016]; see People v Reed, 151 AD3d 1821, 1824 [2017], lv denied30 NY3d 952 [2017]; People vSinzheimer, 15 AD3d 732, 734 [2005], lv denied 5 NY3d 794 [2005]), and it issettled that "the voluntariness of a consent to search is not vitiated . . . by the failureto give Miranda warnings to an accused while subject to custodial interrogation" (People v McCray, 96 AD3d 1480,1481 [2012] [internal quotation marks, brackets and citation omitted], lv denied 19 NY3d1104 [2012]; accord People vBrown, 107 AD3d 1305, 1307 [2013], lv dismissed 23 NY3d 1018 [2014]; People v May, 100 AD3d 1411,1412 [2012], lv denied 20 NY3d 1063 [2013]). Here, the evidence adduced at thesuppression hearing fully supports County Court's conclusion that defendant not only volunteeredhis consent to the search, but also facilitated the search by offering, and then subsequentlyengaging the backhoe, to exhume the dog's remains. "Such conduct signified . . .defendant's voluntary consent and willingness to cooperate with the police officers in theirsearch" (People v Quagliata, 53AD3d 670, 672 [2008] [citations omitted], lv denied 11 NY3d 834 [2008]; seePeople v McCray, 96 AD3d at 1481; People v Santiago, 41 AD3d 1172, 1173-1174 [2007], lvdenied 9 NY3d 964 [2007]; People v Sinzheimer, 15 AD3d at 734; People vDePace, 127 AD2d 847, 848-849 [1987], lv denied 69 NY2d 879 [1987]).Accordingly, County Court properly denied suppression of the physical evidence.
Garry, P.J., McCarthy, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.