| People v Cabrera |
| 2022 NY Slip Op 03874 [206 AD3d 479] |
| June 14, 2022 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ramon Cabrera, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel) andWhite & Case LLP, New York (Holly Tao of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Martin Marcus, J. at suppression hearing; MarcWhiten, J. at plea; Armando Montano, J. at sentencing), rendered January 26, 2018, convictingdefendant of criminal possession of a weapon in the second degree, and sentencing him to a termof 4
The hearing court properly denied defendant's suppression motion. The record supports eachof the court's factual determinations and alternative legal conclusions.
Based on reliable information from out-of-state authorities that defendant was illegallytransporting firearms into New York, the police stopped defendant as he was getting out of hiscar. In the course of checking defendant's identification, the officers noticed that he had a Floridaconcealed carry permit in his wallet, whereupon they asked him whether he had any firearms inhis car. Although it is unclear whether defendant was in handcuffs when the question was asked,the hearing court correctly determined that even if defendant was handcuffed, the police were notrequired to administer Miranda warnings before asking about the presence of firearms.While the detention was a seizure for Fourth Amendment purposes, it did not constitute custodyfor Miranda purposes (see Berkemer v McCarty, 468 US 420, 436-437 [1984];People v Bennett, 70 NY2d 891 [1987]), and the simple question about firearms wasinvestigatory (see People v Huffman, 41 NY2d 29, 33-34 [1976]). Under these facts, theuse of handcuffs did not elevate the investigatory detention to an arrest (see People vAllen, 73 NY2d 378, 379-380 [1989]), including for Miranda purposes (see People v McDonald, 173 AD3d1633, 1634 [4th Dept 2019], lv denied 34 NY3d 934 [2019]).
When defendant admitted that he had firearms in his car, the police acquired probable causeto search the car pursuant to the automobile exception (see generally People v Galak, 81NY2d 463, 467 [1993]), regardless of whether or not defendant consented. In any event, therecord supports the hearing court's alternative holding that, under the totality of circumstances,defendant voluntarily consented to a search of his car both during his initial encounter with theofficers, and at the police precinct when he was in custody (see e.g. People v Yoneyama, 128 AD3d 616 [1st Dept 2015], lvdenied 26 NY3d 937 [2015]).
We perceive no basis for reducing the sentence. Concur—Webber, J.P., Gesmer, Oing,Singh, Kennedy, JJ.