People v Lamagna

[*1] People v Lamagna 2004 NY Slip Op 51711(U) Decided on December 23, 2004 County Court, Ontario County Doran, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2004
County Court, Ontario County

The PEOPLE OF THE STATE OF NEW YORK,

against

Salvatore Lamagna, Defendant.



04-07-093



R. MICHAEL TANTILLO,

District Attorney of Ontario County

BY: BRIAN D. DENNIS, First Assistant

Attorney for the People

JONATHON LORGE, Esq.

Attorney for the Defendant

Craig J. Doran, J.

An indictment has been filed against the defendant herein, charging him with one count of Attempted Rape in the First Degree, in violation of Sections 110.00 and 130.35(1) of the Penal Law; one count of Endangering the Welfare of a Child, in violation of Section 260.10(1) of the Penal Law; and one count of Harassment in the First Degree, in violation of Section 240.25 of the Penal Law. Pursuant to the defendant's request, the court granted severance of the first count of the indictment.

With respect to the first count of the indictment, a pre-trial suppression hearing was held on this matter on December 21, 2004, pursuant to the defendant's request to suppress certain oral statements made by the defendant to law enforcement officials, a request to suppress certain tangible items of evidence seized, as well as a request to suppress certain identification testimony. At the conclusion of the hearing, the Court reserved decision on defendant's motions to suppress.

FINDINGS OF FACTThe Court makes the following findings of fact based upon the credible testimony adduced [*2]at the pre-trial suppression hearing.

On July 26, 2004 at approximately 10:23 a.m., Ontario County Sheriff's Deputy Dennis Herrington, was dispatched to the Ontario County Park for a reported attempted assault on a female victim. While en route to the park, Deputy Herrington received several other dispatches, including a description of a motor vehicle possibly being driven by the suspect. Deputy Herrington learned that the attempted assault took place in a restroom located at the park. Deputy Herrington arrived on the scene approximately four minutes after receiving the dispatch. Upon his arrival, Deputy Herrington observed a red Ford Taurus automobile stopped in the exit driveway of the Park. There was a highway truck blocking the Taurus' ability to exit the park. There were several highway employees surrounding the vehicle and the officer observed a male subject (later identified as the defendant herein)sitting in the driver's seat of the automobile.

Deputy Herrington asked the defendant to exit his motor vehicle. The defendant was placed in the back seat of the deputy's patrol car for his safety. Deputy Herrington requested that one of the park employees summon the victim (Mikka Gates) to the scene. The victim arrived shortly thereafter. The officer asked the victim if she recognized the gentleman seated in the back seat of the patrol vehicle. The victim was approximately five feet away from the defendant when she observed him. The victim identified the defendant as her attacker. This identification took place within 10 minutes of the deputy's arrival at the scene. Deputy Herrington then escorted the victim to the defendant's vehicle where she observed a yellow towel in plain view on the front seat of the defendant's vehicle. The victim identified the yellow towel as the towel that had been used during the assault. Thereafter, the towel was secured by an evidence technician.

The defendant was then placed under arrest and handcuffed at approximately 10:40 a.m. The defendant was then transported to the Ontario County Sheriff's Department where he was placed in an interview room.

Investigator Cecil Brand interviewed the defendant at approximately 12:30 p.m. Prior to the interview, Investigator Brand introduced himself and asked the defendant whether he needed anything. The defendant was given water and the interview began at approximately 12:36 p.m. Investigator Brand recited the proper Miranda warnings to the defendant. Upon their completion, the defendant indicated that he understood his rights and that he was willing to waive them. Thereafter, Investigator Brand proceeded to interview the defendant. Throughout the interview, the defendant made several admissions, including an admission that he intended to have sex with the victim and knew that he had to use force in order to have sex with her. The defendant admitted that he used the yellow towel during the commission of the crime. At approximately 1:15 p.m., Investigator Brand took a break and the defendant was given a soda. At approximately 1:25 p.m., the interview began again and the investigator asked the defendant if he would provide a written statement. Shortly thereafter, the defendant invoked his right to counsel and the interview stopped.

CONCLUSIONS OF LAW

Initially, with respect to the showup identification of the defendant by the victim, this Court finds that such procedure was proper in all respects. The defendant was apprehended at the exit of the Ontario County Park, where the assault took place. The showup procedure was conducted near the crime scene, approximately 15 minutes after the attack occurred (see, People [*3]v. Libbett, 289 AD2d 961). Thus, the identification took place within close geographic and temporal proximity to the crime. Based upon the evidence adduced at the pre-trial hearing with respect to the identification of the defendant by the victim herein (Mikka Gates), this Court concludes that the identification procedures used herein were not unduly suggestive (see, People v. Brisco, 99 NY2d 596).

With respect to the seizure of the yellow towel from the front seat of defendant's automobile, in plain view, this Court finds that the identification of the towel by the crime victim provided a sufficient predicate for the seizure of this towel from the defendant's vehicle pursuant to the automobile exception (see, People v. Cooke, 267 AD2d 104).

With respect to the oral statement made by the defendant to Investigator Brand, this Court finds that as a matter of law, the People have sustained their burden of proof, beyond a reasonable doubt, that the statements made by the defendant were voluntarily, knowingly and intelligently made, and were so made after the defendant was properly and adequately advised of his rights in all respects. The statement of the defendant was made voluntarily and not under the influence of fear produced by threats of coercion or force, or by any promises, made by the Investigator. The defendant did not request an attorney during the questioning or at any time before the statements were made by him. This Court finds beyond a reasonable doubt that the requirements of the United State Supreme Court, set forth in Miranda v Arizona, 384 US 436, were complied with, and that the warnings required under Miranda were given in such a manner that the defendant was made unmistakably aware of his right not to speak and of his right to the assistance of counsel before speaking.

Based upon the foregoing, the defendant's motion to suppress is denied in all respects.

This Shall Constitute the Decision and Order of the Court.

Signed this 23rd day of December, 2004, at Canandaigua, New York.

December 23, 2004___________________

Craig J. Doran

County Court Judge