PEOPLE v. TOWSLEY (2008)

Defendant appeals from a judgment convicting him after a jury trial of burglary in the second degree (Penal Law § 140.25[2] ) and related offenses.   As the People correctly concede, County Court's Sandoval ruling, pursuant to which the prosecutor was permitted to cross-examine defendant with respect to a prior youthful offender adjudication, constitutes an abuse of discretion (see People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444).   Reversal is not required, however, because a Sandoval error “must be reviewed under the standard applicable to nonconstitutional harmless error,” and here the proof of guilt is overwhelming and there is no significant probability that defendant would have been acquitted but for the error (People v. Grant, 7 N.Y.3d 421, 424, 823 N.Y.S.2d 757, 857 N.E.2d 52).

Contrary to the contention of defendant, the court properly refused to suppress his initial statements to the police.   As the court properly determined, defendant was not in custody when he made his initial statements to the police and Miranda warnings were not required (see People v. Flecha, 43 A.D.3d 1385, 1386, 842 N.Y.S.2d 656, lv. denied 9 N.Y.3d 990, 848 N.Y.S.2d 608, 878 N.E.2d 1024).   The record establishes that “defendant voluntarily accompanied the police to the station, was not handcuffed, was [permitted to leave the station to smoke a cigarette], and was not subjected to lengthy, coercive or accusatory questioning” (People v. Rivera, 285 A.D.2d 385, 385, 728 N.Y.S.2d 446, lv. denied 97 N.Y.2d 658, 737 N.Y.S.2d 59, 762 N.E.2d 937).   Indeed, the police expressly informed defendant that he was not in police custody.   We therefore conclude that a reasonable person in defendant's situation, innocent of any crime, would have believed that he or she was free to leave the police station and thus was not in custody (see generally People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89).   The police advised defendant of his Miranda rights immediately after he made the initial incriminating statements, and thus the statements made by defendant after waiving those rights also were properly admitted at trial.

The sentence is not unduly harsh or severe.   We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: