| People v Lowndes |
| 2018 NY Slip Op 08713 [167 AD3d 1228] |
| December 20, 2018 |
| Appellate Division, Third Department |
[*1](December 20, 2018)
| The People of the State of New York,Respondent, v Jeffrey D. Lowndes, Appellant. |
Barrett D. Mack, Albany, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (Michele A. Bowen of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered September 29, 2016, upon a verdict convicting defendant of the crime of grand larcenyin the fourth degree.
In January 2016, defendant was charged by indictment with grand larceny in the fourthdegree stemming from an allegation that he stole two spools of electrical wire valued in excess of$1,000 from the Olympic Regional Development Authority (hereinafter ORDA). After aHuntley hearing, County Court denied defendant's motion to suppress his writtenstatement. Following a jury trial, defendant was convicted as charged and sentenced, as a secondfelony offender, to the maximum sentence of 2 to 4 years. Defendant now appeals, and weaffirm.
Initially, County Court properly denied suppression of defendant's written statement. "Astatement by a defendant is involuntary and thus inadmissible if it is obtained through 'unduepressure' or 'by means of any promise or statement of fact, which promise or statement creates asubstantial risk that the defendant might falsely incriminate himself or herself' " (People v Cruz, 138 AD3d 1310,1311 [2016] [brackets omitted], quoting CPL 60.45 [2] [a], [b] [i]). The People must prove,beyond a reasonable doubt, the voluntariness of statements given to the police (see People v Steigler, 152 AD3d1083, 1083 [2017], lv denied 30 NY3d 983 [2017]; People v Mattis, 108 AD3d 872,874 [2013], lv denied 22 NY3d 957 [2013]). A confession is not automaticallyinvalidated by the mere making of a promise, and the determination of whether a confession hasbeen coerced depends upon the totality of the circumstances (see People v Neal, 133 AD3d 920, 923 [2015], lv denied 26NY3d 1110 [2016]; People vBridges, 16 AD3d 911, 912 [2005], lv denied 4 NY3d 884 [2005]). Asuppression court's "factual determinations are entitled to great weight and will not be disturbedunless clearly erroneous" (People vVazquez, 145 AD3d 1268, 1270 [2016] [internal quotation marks and citation omitted];see People v Merritt, 96 AD3d1169, 1170 [2012], lv denied 19 NY3d 1027 [2012]).
At the Huntley hearing, a state trooper testified that defendant was arrested while hewas working at the ORDA facility and was placed in the police car. The trooper testified that hethen read defendant his Miranda rights, told him why he was being placed under arrestand told him "not to say anything, think about it, and at the station, if he wants to, he can talk."The trooper testified that, once they arrived at the station, he told defendant that there wereseveral possible charges, at which time defendant denied everything. The trooper then tolddefendant that, if he cooperated, he could be released on an appearance ticket and, if not, hewould be arraigned in front of a judge. Defendant then gave a statement admitting to taking thewire. Defendant was subsequently issued an appearance ticket and was released fromcustody.
The fact that defendant's statement was preceded by the trooper's indication that, if defendantcooperated, he would be released on an appearance ticket, does not render the circumstancesinherently coercive or overbearing (seePeople v McLean, 59 AD3d 861, 862-863 [2009], affd 15 NY3d 117 [2010]).Given that the interview, lasting less than an hour, was not particularly long in duration (seePeople v Mitchell, 289 AD2d 776, 778 [2001], lv denied 98 NY2d 653 [2002]), andthat defendant has extensive experience with the criminal justice system (see People vWard, 241 AD2d 767, 769 [1997], lv denied 91 NY2d 837 [1997]), we find, basedon the totality of the circumstances, that County Court did not err in denying defendant's motionto suppress his statement (see People v Cruz, 138 AD3d at 1311; People v Neal,133 AD3d at 923).
We also find that County Court's Sandoval ruling was proper. The People werepermitted to impeach defendant by "asking him whether he ha[d] ever been convicted of a crimeand the total number of convictions" but, unless defendant opened the door, no furtherquestioning would be permitted (see generally People v Fardan, 82 NY2d 638, 646[1993]; People v Wheeler, 124AD3d 1136, 1139 [2015], lv denied 25 NY3d 993 [2015]). Despite defendant'sclaims that his ability to testify was chilled by this ruling, the court properly considereddefendant's criminal acts and weighed their probative value against the risk of unfair prejudice(see People v Portis, 129 AD3d1300, 1303 [2015], lv denied 26 NY3d 1091 [2015]; People v Vasquez, 71 AD3d 1179,1180 [2010], lv denied 14 NY3d 894 [2010]). Finally, given defendant's extensivecriminal history and the absence of extraordinary circumstances or an abuse of discretion, theimposition of the maximum allowable sentence for a second felony offender was neither harshnor excessive (see People vCloonan, 166 AD3d 1063, 1065 [2018]; People v Jemmott, 164 AD3d 953, 957 [2018], lv denied32 NY3d 1112 [2018]; People v Wright, 160 AD3d 1110, 1112-1113 [2018], lvdenied 31 NY3d 1154 [2018]).
Devine, J.P., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.