BUCHANAN, JACOB C., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    26
    KA 13-00860
    PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    JACOB C. BUCHANAN, DEFENDANT-APPELLANT.
    (APPEAL NO. 1.)
    TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Monroe County
    (Joanne M. Winslow, J.), rendered August 28, 2012. The judgment
    convicted defendant, upon his plea of guilty, of robbery in the first
    degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: In appeal No. 1, defendant appeals from a judgment
    convicting him upon his plea of guilty of robbery in the first degree
    (Penal Law § 160.15 [4]). In appeal No. 2, defendant appeals from a
    judgment convicting him upon his plea of guilty of burglary in the
    second degree (§ 140.25 [2]). In appeal No. 3, defendant appeals from
    a judgment convicting him upon his plea of guilty of robbery in the
    first degree (§ 160.15 [3]). All of the pleas were entered during one
    plea proceeding, following the denial of defendant’s suppression
    motion concerning all of the charges. Defendant contends that Supreme
    Court erred in denying his suppression motion inasmuch as his
    inculpatory statements to the police were involuntarily made and not
    attenuated from his unlawful arrest. We reject that contention.
    Indeed, “[t]he choice to speak where speech may incriminate is
    constitutionally that of the individual, not the government, and the
    government may not effectively eliminate it by any coercive device”
    (People v Thomas, 22 NY3d 629, 642). We note, however, that “ ‘[t]he
    voluntariness of a confession is to be determined by examining the
    totality of the circumstances surrounding the confession’ ” (People v
    Peay, 77 AD3d 1309, 1309-1310, lv denied 15 NY3d 955; see Thomas, 22
    NY3d at 641-642). Here, an officer who interviewed defendant
    testified at the suppression hearing that defendant was not threatened
    or promised anything in order for him to waive his Miranda rights, and
    -2-                            26
    KA 13-00860
    the officer did not promise defendant that, if he cooperated, the
    officer would help him gain admission into a Drug Court program. The
    court did not credit defendant’s testimony that the officers who
    questioned him promised to help him “with the judge and something
    about Drug Court,” and we give deference to the court’s resolution of
    issues of credibility (see generally People v Prochilo, 41 NY2d 759,
    761; People v Williams, 115 AD3d 1344, 1345). In any event, even
    crediting defendant’s testimony, we agree with the People that the
    statements by the officers were not deceptive or coercive (see People
    v Sabines, 121 AD3d 1409, 1411, lv denied 25 NY3d 1171; see generally
    Thomas, 22 NY3d at 641-642). We conclude that the People proved
    beyond a reasonable doubt that defendant’s statements were not
    products of coercion but rather were the “result of a ‘free and
    unconstrained choice’ ” by defendant (Thomas, 22 NY3d at 641).
    We agree with the People that, even assuming that defendant was
    illegally arrested, “defendant’s statements were sufficiently
    attenuated from the illegal arrest to be purged of the taint created
    by the illegality” (People v Russell, 269 AD2d 771, 772). “[A]
    confession that is made after an arrest without probable cause is not
    subject to suppression if the People adequately demonstrate that the
    inculpatory admission was ‘attenuated’ from the improper detention; in
    other words, it was ‘acquired by means sufficiently distinguishable
    from the arrest to be purged of the illegality’ ” (People v Bradford,
    15 NY3d 329, 333). In determining whether there has been attenuation,
    courts must consider “the temporal proximity of the arrest and the
    confession, the presence of intervening circumstances and,
    particularly, the purpose and flagrancy of the official misconduct”
    (id. at 333 [internal quotation marks omitted]).
    Here, defendant was not interrogated until almost 2½ hours after
    his arrest (see id. at 333-334; see also People v Rogers, 52 NY2d 527,
    532-534, rearg denied 54 NY2d 753, cert denied 
    454 US 898
    , reh
    denied 
    459 US 898
    ). He was given Miranda warnings prior to the
    interrogation, which is an “important” attenuation factor (People v
    Conyers, 68 NY2d 982, 983). Before defendant was interrogated, a
    codefendant implicated defendant in at least one of the crimes, which
    constituted a significant intervening event and provided the police
    with probable cause (see generally Bradford, 15 NY3d at 333-334;
    Russell, 269 AD2d at 772). Finally, there was no evidence of flagrant
    misconduct or bad faith on the part of the officers (see Bradford, 15
    NY3d at 334).
    Entered:   February 5, 2016                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 13-00860

Filed Date: 2/5/2016

Precedential Status: Precedential

Modified Date: 10/7/2016