People v Vartholomeou (Katherine)

[*1] People v Vartholomeou (Katherine) 2008 NY Slip Op 52194(U) [21 Misc 3d 134(A)] [21 Misc 3d 134(A)] Decided on October 30, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 30, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and MOLIA, JJ
2006-1285 N CR.

The People of the State of New York, Respondent,

against

Katherine Vartholomeou, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Erica L. Prager, J.), rendered July 7, 2006. The judgment convicted defendant, upon a jury verdict, of petit larceny. The appeal brings up for review the denial, after a hearing (Scott Fairgrieve, J.), of that branch of defendant's motion which was to suppress a statement she made to a police officer.

Judgment of conviction affirmed.

Defendant was apprehended outside of a department store with 63 items of store merchandise still bearing the tags identifying them as store merchandise. Defendant had no proof of payment for the items, and she was brought to the station house for post-arrest processing. As she was being photographed and fingerprinted, and before she was read the Miranda warnings, defendant asked the arresting officer why she had been arrested. The officer replied that she had been arrested for stealing, and defendant stated that she had paid for all of the merchandise with the exception of two items. After a hearing, the court, in our view, properly denied defendant's motion to suppress that statement.

The police are "not require[d] . . . to prevent a talkative person in custody from making an incriminating statement. Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed'" (People v Rivers, 56 NY2d 476, 479 [1982] [citation omitted]; see e.g. People v Finn, 180 AD2d 746 [1992]). Further, "not every comment [*2]made by a police officer in response to an inquiry by the defendant can be said to constitute interrogation, merely because it is followed by an incriminating statement from the defendant" (People v Rivers, 56 NY2d at 479). This is especially true where an unwarned defendant, in custody, inquires as to the reason for his or her arrest, an officer states the reason, and defendant utters an incriminating response (e.g. People v Harrison, 251 AD2d 681 [1998]; People v West, 237 AD2d 315 [1997]; People v Hylton, 198 AD2d 301 [1993]; People v Pryor, 194 AD2d 749 [1993]). There is no indication that defendant's statement was prompted by questioning, subtle maneuvering, compulsion other than that normally attendant to the conditions of custody, or any other official conduct "which could reasonably have been expected to evoke a declaration" (People v Baliukonis, 35 AD3d 626, 627 [2006]).

In the exercise of our power of factual review (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]), we do not set aside the verdict as against the weight of the evidence. Under the circumstances, the determination of credibility by the trier of fact, which had the opportunity to view the witnesses, hear the testimony and observe demeanor, should not be disturbed (see People v Romero, 7 NY3d 633, 644 [2006]; People v Bleakley, 69 NY2d at 495).

Accordingly, the judgment convicting defendant of petit larceny (Penal Law § 155.25) is affirmed.

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: October 30, 2008