| People v Morris |
| 2019 NY Slip Op 05264 [173 AD3d 1797] |
| June 28, 2019 |
| Appellate Division, Fourth Department |
[*1](June 28, 2019)
| The People of the State of New York,Appellant, v Steven Morris, Respondent. |
Patrick E. Swanson, District Attorney, Mayville (Wendy Evans Lehmann of counsel), forappellant.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-respondent.
Appeal from an order of the Chautauqua County Court (David W. Foley, J.), dated December21, 2017. The order granted that part of defendant's omnibus motion seeking to suppress certainstatements.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, thatpart of the omnibus motion seeking to suppress defendant's statements is denied, and the matteris remitted to Chautauqua County Court for further proceedings on the indictment.
Memorandum: The People appeal from an order granting that part of defendant's omnibusmotion seeking to suppress certain statements that he made during the investigation of his allegedunlawful sexual contact with a three-year-old child. We agree with the People that County Courterred in suppressing defendant's oral statements made to the mother of the alleged victim duringa controlled telephone call that was recorded by the police. Although it is undisputed that themother was acting as an agent of the police when she made the controlled call (see People v Taplin, 1 AD3d 1044,1045 [4th Dept 2003], lv denied 1 NY3d 635 [2004]), we conclude that the mother "didnot make a threat [or a promise] that would create a substantial risk that defendant might falselyincriminate himself" (People vBradberry, 131 AD3d 800, 802 [4th Dept 2015], lv denied 26 NY3d 1086 [2015][internal quotation marks omitted]; see CPL 60.45 [2] [b] [i]; see also People vPrice, 285 AD2d 616, 616 [2d Dept 2001], lv denied 97 NY2d 708 [2002];People v Huntley, 259 AD2d 843, 845-846 [3d Dept 1999], lv denied 93 NY2d972 [1999]). We further conclude that the controlled call did not constitute an unconstitutionallycoercive police tactic; nor were the tactics employed by the mother during the callunconstitutionally coercive (see generally CPL 60.45 [2] [b] [ii]; People v Thomas, 22 NY3d 629,641-645 [2014]). "Police may generally engage in deception while investigating a crime" (People v Colbert, 60 AD3d 1209,1211 [3d Dept 2009]), and "[d]eceptive police stratagems in securing a statement 'need not resultin involuntariness without some showing that the deception was so fundamentally unfair as todeny due process or that a promise or threat was made that could induce a falseconfession' " (People vDishaw, 30 AD3d 689, 690 [3d Dept 2006], lv denied 7 NY3d 787 [2006],quoting People v Tarsia, 50 NY2d 1, 11 [1980]; see Bradberry, 131 AD3d at802). In this case, we conclude that "there was no such showing" (Bradberry, 131 AD3dat 802; cf. Thomas, 22 NY3d at 645; see generally People v Clark, 139 AD3d 1368, 1369 [4th Dept2016], lv denied 28 NY3d 928 [2016]).
We also agree with the People that the court erred in suppressing statements made bydefendant during an interview with investigators from the Chautauqua County Sheriff's Officebased upon a purported Miranda violation. It is well established that "both the elementsof police 'custody' and police 'interrogation' must be present before law enforcement officialsconstitutionally are obligated to provide the procedural safeguards imposed upon them byMiranda" (People v Huffman, 41 NY2d 29, 33 [1976]; see People v Hailey, 153 AD3d1639, 1640 [4th Dept 2017], lv denied 30 NY3d 1060 [2017]). Here, the evidence atthe Huntley hearing established that the investigators subjected defendant tointerrogation. Contrary to the court's conclusion, however, the evidence also established thatdefendant was not in custody when he made the statements.
"The standard for assessing a suspect's custodial status is whether a reasonable personinnocent of any wrongdoing would have believed that he or she was not free to leave" (People v Paulman, 5 NY3d 122,129 [2005]). The test is "not what the defendant thought, but rather what a reasonable [person],innocent of any crime, would have thought had he [or she] been in the defendant's position" (People v Figueroa, 156 AD3d1348, 1348 [4th Dept 2017], lv denied 31 NY3d 1013 [2018] [internal quotationmarks omitted]; see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400US 851 [1970]). In this case, although defendant's interview occurred at the Sheriff's Office, thatfact "does not necessarily mean that he is to be considered 'in custody' " (Yukl, 25NY2d at 589). Defendant voluntarily agreed to meet the investigators at the Sheriff's Office andarranged for his own transportation to and from the interview (see People v Eriksen, 145 AD3d1110, 1111-1112 [3d Dept 2016], lv denied 28 NY3d 1183 [2017]; People v Drennan, 81 AD3d 1279,1279 [4th Dept 2011], lv denied 16 NY3d 858 [2011], lv denied uponreconsideration 17 NY3d 816 [2011]). When defendant arrived, the investigators informedhim that he was free to leave (see Peoplev Vargas, 109 AD3d 1143, 1143 [4th Dept 2013], lv denied 22 NY3d 1044[2013]; People v Weakfall, 108AD3d 1115, 1115-1116 [4th Dept 2013], lv denied 21 NY3d 1078 [2013]). In fact,defendant left the Sheriff's Office at the conclusion of the interview despite making inculpatorystatements. Further, defendant was not restrained during the interview, and the door to theinterview room was unlocked (seePeople v Cade, 110 AD3d 1238, 1239 [3d Dept 2013], lv denied 22 NY3d 1155[2014]; Weakfall, 108 AD3d at 1115-1116). Although the investigators confronteddefendant with the statements that he made during the controlled call, the fact that thequestioning may have turned accusatory in nature did not render the interview custodial given theother circumstances present in this case (see People v Brown, 153 AD3d 1664, 1665 [4th Dept 2017], lvdenied 30 NY3d 1103 [2018]; People v Hernandez, 25 AD3d 377, 378 [1st Dept 2006], lvdenied 6 NY3d 834 [2006]). Present—Centra, J.P., Peradotto, Carni, Lindley andTroutman, JJ.