| People v Brown |
| 2019 NY Slip Op 08206 [177 AD3d 763] |
| November 13, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edward Brown, Appellant. |
Charles E. Holster III, Garden City, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and HildaMortensen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Alan L. Honorof, J.), rendered September 11, 2014, convicting him of murder in thesecond degree, grand larceny in the fourth degree, and criminal possession of stolenproperty in the fifth degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Tammy S. Robins, J.), of that branch ofthe defendant's omnibus motion which was to suppress his written statement to lawenforcement officials and a map.
Ordered that the judgment is affirmed.
On the evening of December 17, 2012, Nunzio Izzo (hereinafter the victim) spent theevening at a companion's home, where the defendant also resided. The victim failed toreturn home, and his family reported him missing to the Glen Cove Police Department onDecember 19, 2012. On January 2, 2013, Glen Cove Police detectives, assisted by theNassau County Police Department homicide squad, located the defendant at a hotel. TwoNassau County detectives went to the defendant's hotel room, told him they wereassisting Glen Cove detectives on a missing person case, and asked him to accompanythem to the police station for an interview, which he agreed to do. During the course ofthe interview, which spanned approximately 2
The defendant was charged with murder in the second degree (Penal Law§ 125.25 [1]), grand larceny in the fourth degree (Penal Law§ 155.30 [5]), and criminal possession of stolen property in the fifth degree(Penal Law § 165.40). The defendant moved, inter alia, to suppress thewritten statement and the map on the ground that they were taken in violation of hisMiranda rights (see Miranda v Arizona, 384 US 436 [1966]). The Peopleconsented to a Huntley hearing (see People v Huntley, 15 NY2d 72[1965]). After the hearing, the Supreme Court denied those branches of the defendant'somnibus motion which were to suppress the written statement and the map, finding thatthe defendant was not in custody when they were made. At trial, the jury found thedefendant guilty of murder in the second degree, grand larceny in the fourth degree, andcriminal possession of stolen property in the fifth degree. The defendant appeals.
"The Miranda rule protects the privilege against self-incrimination and,because the privilege applies only when an accused is compelled to testify, thesafeguards required by Miranda are not triggered unless a suspect is subject tocustodial interrogation" (Peoplev Paulman, 5 NY3d 122, 129 [2005] [internal quotation marks omitted]; seePeople v Berg, 92 NY2d 701, 704 [1999]). "The standard for assessing a suspect'scustodial status is whether a reasonable person innocent of any wrongdoing would havebelieved that he or she was not free to leave" (People v Paulman, 5 NY3d at 129;see People v Harris, 48 NY2d 208, 215 [1979]; People v Torres, 172 AD3d758, 760 [2019]; People vJackson, 103 AD3d 814, 816 [2013]). The issue of whether a suspect is incustody is generally a question of fact (see People v Reardon, 124 AD3d 681, 683 [2015]), anddoes not turn on the subjective beliefs of the defendant (see People v Yukl, 25NY2d 585, 589 [1969]), or the subjective intent of the police officer (see People vReardon, 124 AD3d at 683). "The factors to be weighed include the amount of timewhich the defendant spent with the police, the manner, if any, in which his freedom wasrestricted, the location and atmosphere of his questioning, the degree of cooperationwhich he exhibited, whether he was apprised of his constitutional rights, and whether thequestioning was investigatory or accusatory in nature" (People v Petrovich, 202AD2d 523, 524 [1994], affd 87 NY2d 961 [1996]; see People v Blake,177 AD2d 636, 636 [1991]).
Giving deference to the hearing court's credibility determinations (see People v Baggett, 57 AD3d1093, 1094 [2008]), the court's conclusion that the defendant was not in policecustody before he was administered Miranda rights and made the writtenstatement and map is supported by the record (see People v Gelin, 128 AD3d 717, 718 [2015]; People v Floyd, 85 AD3d1052, 1053 [2011]; Peoplev Martin, 68 AD3d 1015, 1016 [2009]). The hearing testimony established thatthe defendant voluntarily accompanied the police to the police station, brought hispersonal items with him, and was not handcuffed. At the police station, the defendantwas brought to a conference room, where the door was kept unlocked, and was offeredfood, water, and the opportunity to use the bathroom. During the interview, the defendantwas not handcuffed and had his personal belongings with him, including his cell phone(see People v Meyer, 119AD3d 876 [2014]; People vFoy, 26 AD3d 344, 344 [2006]; People v Delfino, 234 AD2d 382, 383[1996]). The fact that the detectives confronted the defendant with evidence that he hadpawned the victim's rings prior to the interview and identified inconsistencies in thedefendant's explanation of how he obtained the rings did not render the interviewcustodial in nature under the circumstances (see People v Morris, 173 AD3d 1797, 1799 [2019]; People v Brown, 153 AD3d1664, 1664 [2017]; Peoplev Davis, 48 AD3d 1086, 1087 [2008]; People v Hernandez, 25 AD3d 377, 378 [2006]).Accordingly, we agree with the hearing court's determination to deny that branch of thedefendant's omnibus motion which was to suppress the defendant's written statement tothe police and the map.
In light of our determination, we need not reach the defendant's remainingcontentions regarding the hearing court's determination.
The defendant's contentions in his pro se supplemental brief are without merit.Austin, J.P., Duffy, Brathwaite Nelson and Christopher, JJ., concur.