People v. Herrera , 153 A.D.3d 1173 ( 2017 )

People v Herrera (2017 NY Slip Op 06612)

People v Herrera

2017 NY Slip Op 06612

Decided on September 26, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 26, 2017
Sweeny, J.P., Renwick, Kapnick, Kern, Moulton, JJ.

4490 3580/12

[*1]The People of the State of New York, Respondent,

v

Frank Herrera, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Sheilah Fernandez of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael R. Sonberg, J. at suppression hearing; Jill Konviser, J. at plea and sentencing), rendered September 16, 2014, convicting defendant of robbery in the third degree, and sentencing him to a term of two to six years, unanimously affirmed.

The court properly denied defendant's motion to suppress the statement he made to a detective. Although defendant had previously invoked his right to counsel, the record supports the hearing court's finding that the statement was spontaneous and not the product of interrogation or its functional equivalent. The detective's only involvement in the case was to maintain custody of defendant while he was in a holding cell after his arrest by other officers. This detective merely attended to defendant's needs and engaged him in innocuous social conversation that was unrelated to the case and that defendant had initiated. As soon as defendant blurted out an admission, the detective terminated the conversation. None of the detective's conduct was reasonably likely to elicit an incriminating statement (see People v Rivers , 56 NY2d 476, 480 [1982]; People v Lynes , 49 NY2d 286, 294-295 [1980]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 26, 2017

CLERK