People v Burton

People v Burton 2008 NY Slip Op 09643 [57 AD3d 261] December 9, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Floyd Burton, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell, New York (Alexis G. Stone of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Vikas Khanna of counsel), for respondent.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered January 12, 2007, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3½ to 7 years, unanimously affirmed.

The court properly denied defendant's suppression motion. While defendant was in custody and awaiting medical attention at a hospital, an officer engaged him in general conversation on subjects unrelated to the case. This was not the functional equivalent of interrogation (see e.g. People v Man Lee Lo, 118 AD2d 225, 230-231 [1986], lv denied 68 NY2d 814 [1986]), and the surrounding circumstances were not inherently coercive. Defendant ultimately asked the officer two questions about the charges against him. In each instance, the officer's immediate answer was brief, neutral and did not go beyond what was asked (see e.g. People v Rivers, 56 NY2d 476, 480 [1982]; People v Minor, 158 AD2d 412 [1990], lv denied 75 NY2d 968 [1990]; compare People v Lanahan, 55 NY2d 711 [1981]), and each answer led to a spontaneous incriminating statement by defendant that was not the product of interrogation. Finally, defendant's claim that, at the time of these statements, he had invoked his right to remain silent improperly relies on trial testimony (see People v Abrew, 95 NY2d 806, 808 [2000]). Concur—Tom, J.P., Gonzalez, Nardelli, Moskowitz and Renwick, JJ.