| People v McDonald |
| 2019 NY Slip Op 04546 [173 AD3d 1633] |
| June 7, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Robert G. McDonald, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Benjamin Margo of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joanne M. Winslow, J.),rendered December 13, 2016. The judgment convicted defendant, after a nonjury trial, of drivingwhile ability impaired and aggravated unlicensed operation of a motor vehicle in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a bench trial ofdriving while ability impaired (Vehicle and Traffic Law § 1192 [1]) and aggravatedunlicensed operation of a motor vehicle in the first degree (§ 511 [3] [a] [i]). Wereject defendant's contention that Supreme Court erred in refusing to suppress statements hemade to the police before he received his Miranda warnings because he was subjected tocustodial interrogation. The evidence at the Huntley hearing, as credited by the court(see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Moore, 295 AD2d969, 969 [4th Dept 2002], lv denied 98 NY2d 770 [2002]), established that a policesergeant initially observed defendant's failure to stop his vehicle at a stop sign. The sergeantfollowed defendant and activated the emergency lights on his police vehicle to signal todefendant to pull over. Defendant did not pull over but instead made three additional turns ontoother streets without signaling. The sergeant observed defendant as he parked his vehicle in alurching fashion, exited the vehicle, and then began walking on the sidewalk with a staggeringgait. The sergeant exited his police vehicle and repeatedly commanded defendant to stop andreturn to his vehicle, but defendant continued walking. When the sergeant caught up todefendant, defendant stated that he was walking to a bar located approximately one block away.The sergeant noted that defendant's breath smelled of alcohol, that his eyes were glassy,bloodshot, and watery, and that his speech was slurred. The sergeant testified that he handcuffeddefendant upon apprehending defendant on the sidewalk because he was uncertain whydefendant had been trying to evade him and what defendant's intentions were. The sergeantwalked defendant to the police vehicle and seated defendant on the back seat thereof with thedoor open and defendant's feet on the ground outside. The sergeant then asked defendant if hehad a driver's license, where he was going, and if he had been drinking. Defendant stated that hewas headed to a nearby bar and subsequently stated that he had previously consumed two drinksand that his driver's license had been revoked.
Contrary to defendant's contention, we conclude that his answers to the sergeant's questionswere not the product of a custodial interrogation requiring Miranda warnings. " 'Itis well established that not every forcible detention constitutes an arrest' " (People v Pruitt, 158 AD3d 1138,1139 [4th Dept 2018], lv denied 31 NY3d 1120 [2018]) and, under the circumstancesnoted above, we agree with the court that the sergeant's use of handcuffs did not transform thedetention into a de facto arrest. Rather, the sergeant's use of the handcuffs to effect the detentionwas warranted in light of the threat that defendant might take additional evasive action (seePeople v Allen, 73 NY2d 378, 379-380 [1989]; People v Floyd, 158 AD3d 1146, 1147 [4th Dept 2018], lvdenied 31 NY3d 1081 [2018]).
We further conclude that seating defendant on the back seat of the police vehicle did nottransform the sergeant's questioning into a custodial interrogation. The sergeant lawfully,although forcibly, detained defendant for investigatory purposes based on his observation ofdefendant committing several traffic infractions (see People v Pealer, 89 AD3d 1504, 1506 [4th Dept 2011], affd20 NY3d 447 [2013], cert denied 571 US 846 [2013], rearg denied 24 NY3d993 [2014]; see generally People vCarver, 124 AD3d 1276, 1278 [4th Dept 2015], affd 27 NY3d 418 [2016]).Given defendant's visible intoxication, staggering gait, and prior evasive actions, a " 'lessintrusive means of fulfilling the police investigation' " than seating defendant partially inthe police vehicle " 'was not readily apparent' " (People v Howard, 129 AD3d1654, 1656 [4th Dept 2015], lv denied 27 NY3d 999 [2016]; see People v Williams, 73 AD3d1097, 1099-1100 [2d Dept 2010], lv dismissed 15 NY3d 779 [2010]). Here, thesergeant's "action fell short of the level of intrusion upon defendant's liberty and privacy thatconstitutes an arrest" (People v Hicks, 68 NY2d 234, 240 [1986]; see Howard,129 AD3d at 1655-1656). In addition, the sergeant's questions were investigatory rather thancustodial in nature (see People v Lagreca, 221 AD2d 1026, 1026 [4th Dept 1995], lvdenied 87 NY2d 923 [1996]; see also People v Spencer, 289 AD2d 877, 879 [3dDept 2001], lv denied 98 NY2d 655 [2002]; People v Swan, 277 AD2d 1033,1033 [4th Dept 2000], lv denied 96 NY2d 788 [2001]).
Finally, we conclude that any error in refusing to suppress the disputed statements isharmless beyond a reasonable doubt (see generally People v Crimmins, 36 NY2d 230,237 [1975]; People v Hough, 151AD3d 1591, 1593 [4th Dept 2017], lv denied 30 NY3d 950 [2017]).Present—Whalen, P.J., Peradotto, Lindley, DeJoseph and NeMoyer, JJ.