| People v Pittman |
| 2019 NY Slip Op 08733 [178 AD3d 1136] |
| December 5, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Henry Pittman, Appellant. |
Dennis J. Lamb, Troy, for appellant.
Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Greene County (Wilhelm, J.),rendered June 23, 2017, convicting defendant upon his plea of guilty of the crime of attemptedburglary in the second degree.
On March 23, 2016, a police officer and a police sergeant responded to the scene of areported burglary in the Village of Catskill, Greene County involving the theft of property,including a laptop computer. While going door-to-door to ask neighbors if they had seenanything related to the burglary, the two police officers encountered defendant, who was visitingthe tenants of a nearby apartment. One of the tenants told the officer privately that defendant hadoffered to sell her a laptop, and the sergeant observed a backpack in the apartment containing alaptop computer. Defendant initially disclaimed but ultimately admitted ownership of thebackpack. Upon arresting defendant, the officer discovered that defendant's pockets containedpills and narcotics. At the police station, the officer read defendant his Miranda rights andtwice confirmed that defendant understood them. The officer then took a written statement fromdefendant, which had his Miranda rights printed on the form. Defendant did not ask tospeak with an attorney.
Defendant was subsequently charged with burglary in the second degree, petit larceny,criminal possession of a controlled substance in the third degree, two counts of criminalpossession of a controlled substance in the seventh degree, criminal possession of a controlledsubstance in the fifth degree and unlawful possession of marihuana. Defendant moved, amongother things, to suppress the oral and written statements he made to law enforcement, the laptopcomputer seized from him and other physical evidence recovered during the search of his personincident to his arrest. Following a combined Mapp/Huntley hearing, County Court deniedhis motion. Defendant thereafter entered an Alford plea to attempted burglary in thesecond degree in full satisfaction of the indictment, and retained his right to appeal. In accordwith his plea agreement, defendant was sentenced as a second felony offender to a prison term offive years, with five years of postrelease supervision. Defendant appeals.
Initially, we reject defendant's contention that he was subjected to custodial interrogation atthe apartment in violation of his Miranda rights. "A defendant is subjected to custodialinterrogation, triggering his or her rights under Miranda, when a reasonable personinnocent of any wrongdoing would have believed that he or she was not free to leave" (People v Jeremiah, 147 AD3d1199, 1200 [2017] [internal quotation marks and citation omitted], lv denied 29NY3d 1031, 1033 [2017]). The suppression hearing testimony established that the officer left andreturned to the apartment twice, did not threaten, handcuff or otherwise restrain defendant, andgave no indication that defendant was not free to leave at any time. Although the officer testifiedthat he at one point followed defendant into the kitchen to prevent him from obtaining a kitchenknife or fleeing, this "unarticulated plan has no bearing on the question whether [defendant] wasin custody" (id. at 1201 [internal quotation marks and citations omitted]). Under thesecircumstances, we conclude that a reasonable person innocent of any wrongdoing would havebelieved that he or she was free to leave (see People v Jeremiah, 147 AD3d at 1200; People v Vieou, 107 AD3d 1052,1053 [2013]; People v Hook, 80AD3d 881, 883 [2011], lv denied 17 NY3d 806 [2011]). We thus reject defendant'sargument that all resulting statements and evidence should have been suppressed (see People v Henry, 114 AD3d1025, 1027 [2014], lv dismissed 22 NY3d 1199 [2014]; People v Vieou, 107AD3d at 1053; People v Underdue,89 AD3d 1132, 1133 [2011], lv denied 19 NY3d 969 [2012]).
We similarly reject defendant's alternative contention that the laptop computer was illegallyseized without a search warrant and should have been suppressed, along with all evidence seizedthereafter. County Court properly found that the officer and the sergeant were invited into theresidence by its tenants and that defendant, as a social visitor, had no legitimate expectation ofprivacy and lacked standing to challenge the seizure of evidence from the premises (see People v Jones, 155 AD3d1103, 1105 [2017], lv denied 30 NY3d 1106 [2018]). Hearing testimony establishedthat when the sergeant asked defendant and the tenants about a backpack near the chair wheredefendant had been sitting, each of the three individuals denied ownership. The sergeant thenpicked up the backpack, which was open, and observed a laptop computer inside. At that pointdefendant claimed ownership of the bag and tried unsuccessfully to retrieve it. By disclaimingownership, defendant "voluntarily waived any privacy expectation that he had in the backpack. . . and, thus, he lacked standing to contest the admissibility of the [evidence]seized from the abandoned backpack" (People v Savage, 59 AD3d 817, 820 [2009], lv denied 12NY3d 920 [2009]; accord People vRoss, 106 AD3d 1194, 1196 [2013], lv denied 22 NY3d 1090 [2014]; seePeople v Rose, 149 AD2d 811, 812-813 [1989]). By the time that defendant subsequentlyasserted ownership of the backpack, the sergeant had lawfully observed the laptop, in plain view,inside of the open backpack (see People v Diaz, 81 NY2d 106, 110 [1993]; People v Cole, 162 AD3d 1219,1220 [2018], lv denied 32 NY3d 1002 [2018]; People v Tracy, 299 AD2d 659,660 [2002], lv denied 99 NY2d 633 [2003]). Accordingly, County Court properly denieddefendant's motion for suppression of the laptop computer and any other evidence gathered orstatements made as a result of its seizure. Defendant's remaining contentions have been examinedand found to lack merit.
Lynch, Mulvey and Devine, JJ., concur. Ordered that the judgment is affirmed.