People v Evans (Wayne)
Annotate this CaseDecided on August 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: August 30, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2003-1196 K CR
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
against
Wayne Evans, Appellant.
Appeal by defendant, as limited by his brief, from a judgment of the Criminal Court, Kings County (J. Burke, J.), rendered on July 30, 2003, convicting him of attempted possession of burglar's tools (Penal Law §§ 110.00, 140.35), attempted auto stripping in the third degree (Penal Law §§ 110.00, 169.09 [1]) and attempted petit larceny (Penal Law §§ 110.00, 155.25), and imposing sentence. The appeal brings up for review the order of October 29, 2002 (D. Chen, J.), denying defendant's motion to suppress his statement.
Judgment of conviction affirmed.
Under the circumstances presented, we find that the police officer's question posed to the defendant at the scene of the crime was not part of a custodial interrogation which required Miranda warnings, but rather was designed to clarify the nature of the situation (see People v Huffman, 41 NY2d 29 [1976]; People v Nesby, 161 AD2d 246 [1990]). Therefore, the defendant's motion to suppress his statement was properly denied.
Pesce, P.J. and Rios, J., concur.
Patterson, J., dissents in a separate memorandum.
Patterson, J., dissents and votes to reverse the judgment of conviction and order a new trial in the following memorandum:
Under the circumstances of this case, I disagree with the majority's conclusion that defendant's admission was not made during a custodial interrogation. Accordingly, I respectfully dissent.
While responding to a call of a possible auto stripping, the arresting officer noticed defendant dart from one van to another. With his gun drawn, the officer approached one of the vans and observed defendant crouched inside. With his gun still drawn, the officer directed defendant to exit the van and to place his hands on the vehicle while his partner searched the vehicle. During that time, the officer noticed an open toolbox in the van and that defendant's hands were dirty and greasy. Before frisking defendant, the officer holstered his weapon. He then asked defendant what he was doing there, to which defendant replied that he was trying to remove parts from the vehicle. Although the officer conceded that defendant was not free to go during the investigation, the hearing court nevertheless concluded that defendant was not in custody at the time he made the inculpatory statement and that the officer had no duty to administer Miranda warnings prior to this inquiry. I disagree.
It is well settled that the prosecution may not use a defendant's statements following a custodial interrogation, unless the prosecution establishes that the defendant has been "adequately and effectively apprised" of his Miranda rights prior to questioning (People v Shivers, 21 NY2d 118, 121 [1967], quoting Miranda v Arizona, 384 US 436, 467 [1966]). The two-pronged standard for determining whether a pre-Miranda statement is the product of a custodial interrogation is (1) "whether a reasonable person, innocent of any crime, would have believed that he was free to leave the presence of the police" (People v Boyle, 239 AD2d 512 [2d Dept 1997]), and (2) whether police questioning was designed to elicit an incriminating response (see People v Huffman, 41 NY2d 29, 33 [1976]).
Applying this standard here, I conclude that defendant's admission was in response to a custodial interrogation. From the time the officer first observed defendant up until the time he directed defendant to place his hands on the van, the officer's weapon remained drawn on defendant. "Although the officer[] had reholstered [his] weapon[] [before frisking defendant], a reasonable man would have to conclude that defendant's liberty had been significantly restricted" (People v Huffman, 41 NY2d at 33). In the interim, the officer observed an open toolbox in plain view. This, together with defendant's greasy hands and his prior furtive movements, created a situation in which the officer's inquiry - - "What are you doing here?" - - was likely to elicit an incriminating response. In this context, it cannot be said that the officer's inquiry was simply meant to "clarify" the situation. Because the erroneous admission of defendant's statement was not harmless beyond a reasonable doubt (see People v Kello, 96 NY2d 740, 743 [2001]), I vote to reverse the judgment of conviction and order a new trial.
Decision Date: August 30, 2005
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