MAY, DONALD M., PEOPLE v ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1077
    KA 11-01007
    PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    DONALD M. MAY, DEFENDANT-APPELLANT.
    THOMAS J. EOANNOU, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR
    DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Erie County (M.
    William Boller, A.J.), rendered May 13, 2011. The judgment convicted
    defendant, upon his plea of guilty, of criminal possession of a weapon
    in the second degree, criminal possession of a controlled substance in
    the third degree (three counts), criminal possession of a controlled
    substance in the fourth degree, criminally using drug paraphernalia in
    the second degree (two counts) and criminal possession of a weapon in
    the fourth degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: On appeal from a judgment convicting him upon his
    plea of guilty of, inter alia, criminal possession of a weapon in the
    second degree (Penal Law §§ 265.03 [3]), defendant contends that
    Supreme Court erred in denying his motion to suppress certain physical
    evidence because he was subjected to an unlawful seizure. We reject
    that contention. Even assuming, arguendo, that defendant was
    unlawfully detained when the police positioned their vehicle
    perpendicular to defendant’s vehicle in a parking lot, we conclude
    that defendant’s subsequent conduct severed any causal connection
    between the unlawful detention and the subsequently-acquired evidence
    (see People v Rogers, 52 NY2d 527, 533-534, rearg denied 54 NY2d 753,
    cert denied 
    454 US 898
    , reh denied 
    459 US 898
    ; see also People v
    Evans, 289 AD2d 994, 994, lv denied 97 NY2d 728).
    After the police officer approached his vehicle, defendant drove
    backward over a concrete parking barrier and into the roadway, evaded
    a police vehicle stopped across the roadway by maneuvering his vehicle
    over the curb of the roadway and onto several lawns, and sped away at
    approximately twice the posted speed limit. At the very least,
    defendant’s conduct constituted a violation of the misdemeanor of
    -2-                          1077
    KA 11-01007
    reckless driving (Vehicle and Traffic Law § 1212), or reckless
    endangerment in the second degree (Penal Law § 120.20). It is well
    established that “[a] person who is stopped or detained illegally is
    not immunized from prosecution for crimes committed during his [or
    her] detention period” (United States v Garcia-Jordan, 860 F2d 159,
    160; see Rogers, 52 NY2d at 531-532). Here, inasmuch as defendant’s
    response to the police approach was “unjustified and criminal in
    nature . . . and unrelated to the initial [allegedly] unlawful action
    on the part of the police,” suppression of the subsequently-acquired
    evidence was not required (People v Townes, 41 NY2d 97, 102; People v
    Ellis, 4 AD3d 877, 878, lv denied 3 NY3d 639, reconsideration denied 3
    NY3d 673; cf. People v Felton, 78 NY2d 1063, 1065).
    Contrary to the further contention of defendant, we conclude that
    the court did not err in determining, based upon the totality of the
    circumstances, that he voluntarily consented to the search of his
    residence (see Schneckloth v Bustamonte, 
    412 US 218
    , 226; People v
    Gonzalez, 39 NY2d 122, 128; People v Hyla, 291 AD2d 928, 929, lv
    denied 98 NY2d 652). The fact that defendant was in custody when he
    signed the consent to search form does not require suppression of the
    evidence seized from his apartment (see People v McCray, 96 AD3d 1480,
    1481). Defendant contends that, based upon the time recorded on the
    consent to search form, the form was signed before the administration
    of Miranda warnings, and thus the record establishes that the consent
    to search form was not voluntarily signed. However, “ ‘[t]he
    voluntariness of a consent to search is not vitiated, per se, by the
    failure to give Miranda warnings to an accused while subject to
    custodial interrogation’ ” (id.). In any event, the People presented
    evidence at the suppression hearing establishing that the time
    recorded on the consent to search form was erroneous and that the
    police did not request defendant’s consent to search his apartment
    until Miranda warnings had been administered. “It is well settled
    that the suppression court’s credibility determinations and choice
    between conflicting inferences to be drawn from the proof are granted
    deference and will not be disturbed unless unsupported by the record”
    (People v Esquerdo, 71 AD3d 1424, 1424, lv denied 14 NY3d 887
    [internal quotation marks omitted]) and, here, we see no basis to
    disturb the court’s determination that defendant did not sign the
    consent form until he had waived his Miranda rights.
    We reject the further contention of defendant that the court
    erred in refusing to suppress his statements on the ground that he was
    interrogated prior to the administration of Miranda warnings.
    Contrary to defendant’s contention, the police officer’s general
    statements concerning cooperation were not “ ‘reasonably likely to
    elicit an incriminating response’ ” and thus did not constitute
    interrogation (People v Brown, 52 AD3d 1175, 1176, lv denied 11 NY3d
    923, quoting Rhode Island v Innis, 
    446 US 291
    , 301; see People v
    Adams, 244 AD2d 897, 898-899, lv denied 91 NY2d 887).
    Finally, we conclude that the court did not abuse its discretion
    in denying defendant’s motion to dismiss the indictment in the
    interest of justice pursuant to CPL 210.40. “Dismissal of an
    -3-                          1077
    KA 11-01007
    indictment in the interest of justice must be exercised sparingly . .
    ., that is, only in those rare cases where there is a compelling
    factor which clearly demonstrates that prosecution of the indictment
    would be an injustice” (People v Quadrozzi, 55 AD3d 93, 103, lv denied
    12 NY3d 761 [internal quotation marks omitted]; see People v Hudson,
    217 AD2d 53, 55, lv denied 87 NY2d 1020), and this is not “one of
    those rare cases in which failure to dismiss [the indictment] would
    constitute an injustice” (People v Hirsch, 85 AD2d 902, 902).
    Entered:   November 9, 2012                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-01007

Filed Date: 11/9/2012

Precedential Status: Precedential

Modified Date: 10/8/2016