| People v Moore |
| 2018 NY Slip Op 04042 [162 AD3d 1123] |
| June 7, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Appellant, v IvanMoore, Respondent. |
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for appellant.
Sherri J. Brooks, Alternate Public Defender, Albany (Francisco Calderon of counsel), forrespondent.
McCarthy, J.P. Appeal from an order of the County Court of Albany County (Carter, J.),entered August 15, 2017, which granted defendant's motion to suppress evidence.
While the victim was delivering pizza, defendant allegedly stole money from him atgunpoint. After the police determined that defendant's phone number was used to order the pizza,the victim identified defendant from a photo array. A few weeks later, the police stoppeddefendant outside of his place of employment, explained that he was the subject of aninvestigation and asked if he would accompany them back to the station to answer questions.Defendant agreed and they transported him to the station. Once there, a detective administeredMiranda warnings and defendant engaged in a videotaped interrogation. Defendant wascharged with robbery in the second degree and grand larceny in the fourth degree. At hisarraignment, the People advised defendant that they intended to offer statements from, andprovided him a DVD of, his interrogation. Defendant moved to suppress certain evidence.Following a combined Huntley/Dunaway/
Wade
hearing, County Court concluded that the police had probable cause to arrestdefendant. It denied suppression of the victim's identification of defendant through the photoarray, but suppressed defendant's statements, as well as "any information gleaned from [his]phone." The People appeal.Contrary to defendant's argument, the People's appeal is properly before us. Pursuant to [*2]statute, the People may appeal an order granting a suppressionmotion so long as they certify that the deprivation of the suppressed evidence has rendered theirevidence "so weak in its entirety that any reasonable possibility of prosecuting such charge to aconviction has been effectively destroyed" (CPL 450.50 [1]; see CPL 450.20 [8]). ThePeople are not required to justify or substantiate their evaluation of the remaining evidence,especially considering that, once they make such a certification, they are not permitted to goforward with the prosecution unless they are successful on the appeal (see CPL 450.50[2]; People v Kates, 53 NY2d 591, 597 [1981]).
County Court erred in suppressing evidence derived from defendant's cell phone. If adefendant desires to have certain evidence suppressed, he or she must submit a written motioncontaining the legal grounds and sworn factual allegations supporting the request (seeCPL 710.60 [1]; People v Mendoza, 82 NY2d 415, 421 [1993]). Defendant never movedto suppress any evidence that the police obtained from his cell phone. We may not rely on therecord from the combined Huntley/Dunaway/Wade hearing to address the merits of asuppression issue that was never the basis of a motion (see People v Fountaine, 269AD2d 748, 748 [2000], lv denied 94 NY2d 947 [2000]). Indeed, to do so would be unfairto the People because they were not on notice that the issue would be raised at the hearing and,therefore, did not have an opportunity to present evidence addressing questions that the courtraised in its decision. Those topics include when the police took defendant's cell phone, anyconversations between the detectives and defendant regarding that alleged seizure, any policy onsuspects bringing cell phones into the interview room and whether the police searched the phonebefore they brought it into the room and obtained defendant's consent (see People v Giles,73 NY2d 666, 671 [1989]). Inasmuch as defendant never moved for suppression of evidencegleaned from his cell phone, and the People were not given fair notice and an opportunity topresent proof on the issue, the court should not have suppressed such evidence.
County Court erred in suppressing defendant's statements to the police. "The Mirandarule protects the privilege against self-incrimination and, because the privilege applies only whenan accused is compelled to testify, the safeguards required by Miranda are not triggeredunless a suspect is subject to custodial interrogation" (People v Paulman, 5 NY3d 122, 129 [2005] [internal quotationmarks and citation omitted]). "The standard for assessing a suspect's custodial status is whether areasonable person innocent of any wrongdoing would have believed that he or she was not free toleave" (id. at 129 [citations omitted]; see People v Yukl, 25 NY2d 585, 589[1969], cert denied 400 US 851 [1970]; People v Planty, 155 AD3d 1130, 1133 [2017], lv denied 30NY3d 1118 [2018]). A court evaluating whether an individual was in custody must assess "thecircumstances existing when the challenged statements were made, considering such factors asthe location, length and atmosphere of the questioning, whether police significantly restricteddefendant's freedom of action, the degree of defendant's cooperation, and whether the questioningwas accusatory or investigatory" (Peoplev Henry, 114 AD3d 1025, 1026 [2014] [internal quotation marks and citation omitted],lv dismissed 22 NY3d 1199 [2014]; see People v Planty, 155 AD3d at 1133). ThePeople bear the burden of proving, beyond a reasonable doubt, that a defendant's statements topolice were voluntary (see People vGuilford, 21 NY3d 205, 208 [2013]; People v Robinson, 156 AD3d 1123, 1130 [2017], lvdenied 30 NY3d 1119 [2018]).
After a Miranda warning is administered, the voluntariness of a statement isdetermined by examining the totality of the circumstances under which it was obtained (seePeople v Robinson, 156 AD3d at 1130; People v Steigler, 152 AD3d 1083, 1083 [2017], lv denied30 NY3d 983 [2017]). Where "Miranda warnings have been timely given. . . the requisite inference of voluntariness may be relatively easily drawn"(People v Guilford, 21 NY3d at 208). "Factual determinations of the suppression courtare entitled to great weight and will not be overturned unless clearly contrary to the evidence" (People v Muniz, 12 AD3d 937,938 [2004] [citations [*3]omitted]; accord People v Weishaupt, 118 AD3d1100, 1102 [2014]).
Here, the detectives approached defendant outside his place of employment and asked him toaccompany them to the police station. Defendant voluntarily agreed and they drove him to thestation without placing him in handcuffs. The videotaped statement indicates that, during the rideand before entering the interview room, they engaged in general conversation regardingdefendant's background, education, employment and family life, but did not discuss the criminalinvestigation. Inside the interview room, defendant was initially not restrained. The detectivesasked if he would like water and provided him a drink. Later, they obtained a cigarette andallowed him to smoke it, and permitted him to make a phone call. At the beginning of theconversation in the interview room, a detective administered Miranda warnings anddefendant stated that he was willing to talk to them and answer questions. Defendant was notthreatened or coerced during the interview.
County Court did not rely on these facts, but instead focused on what it deemed "thetroubling and unavoidable issue that, prior to entering the interview room and prior toMiranda warnings, . . . defendant's phone had already been seized by thepolice." The court highlighted the People's failure at the hearing to address this seizure of thephone even though, as discussed above, the People were not on notice that anything related to thephone was being challenged by defendant. The court chastised the People for failing toacknowledge or explain "the circumstances under which . . . defendant's phone wasseized and potentially searched, pre-Miranda." The record contains no factual support for,and actually belies, the court's speculative assertion that the phone was searched beforeMiranda warnings were administered, because the video shows that, when the detectiveeventually brought the phone into the interview room and obtained defendant's consent to look atsome of its features, defendant had to unlock the phone with either a password or swipingpattern.
County Court further indicated that there was likely some conversation between defendantand the police at the time his phone was seized, and expressed concern that the substance of thisalleged conversation was not revealed. According to the court, this information was essential tothe suppression determination as it bears directly on voluntariness of defendant's statements andwhether he was in custody. The court's comment concerning such alleged conversation was pureconjecture. The video contains an explanation for why defendant did not have his phone; whendefendant was looking for his phone, the detective stated that it was outside because there is apolicy of no phones in the interview room. Although it is unclear when the police obtainedpossession of defendant's phone, the way that defendant was looking through his coat andpockets—in the interview room several minutes after receiving his Mirandawarnings—indicates that he was unaware that he did not have his phone at that time.Regardless of whether the police accurately explained the alleged phone policy, it is unlikely thata reasonable person would feel that he or she was not free to leave based on the police holdinghis or her cell phone outside the room, especially if the person did not even know that the policehad obtained possession of the phone. For the same reason, the record does not support thecourt's suggestion that some conversation ensued when the police seized the phone. Even if aconversation did ensue regarding turning over the phone, there is no indication that suchconversation constituted interrogation.
The information contained in the record supports a finding that defendant was not in custodywhen he arrived at the police station, he was informed of and voluntarily waived hisMiranda rights before any interrogation began and his statements given thereafter werevoluntary. Accordingly, defendant's suppression motion should have been denied in itsentirety.
[*4] Egan Jr., Devine, Mulvey andRumsey, JJ., concur. Ordered that the order is modified, on the law and the facts, by reversing somuch thereof as suppressed defendant's statements to police and information gleaned from hisphone; motion denied to said extent; and, as so modified, affirmed.