PEOPLE v. DOUGLAS (2004)

 In appeal No. 1, defendant appeals from a judgment convicting him after a jury trial of burglary in the second degree (Penal Law § 140.25 [2] ) and other crimes.   We agree with defendant that County Court erred in denying that part of his pretrial motion seeking suppression of the incriminating statement he made while being transported to arraignment.   The State Police interrogated defendant after advising him of his Miranda rights and ceased their interrogation when he said, “I have nothing further to say.”   The incriminating statement thereafter made by defendant during the course of further questioning while being transported to arraignment should have been suppressed.   Defendant was not again advised of his Miranda rights prior to that questioning, and thus the record establishes that his right to remain silent was not “scrupulously honored” (Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694;  see People v. Perkins, 289 A.D.2d 940, 941, 735 N.Y.S.2d 273, lv. denied 98 N.Y.2d 654, 745 N.Y.S.2d 513, 772 N.E.2d 616;  People v. Brown, 266 A.D.2d 838, 700 N.Y.S.2d 605, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 536, 725 N.E.2d 1098).   Contrary to the People's contention, we conclude that the statement, “I have nothing further to say” could not have been interpreted by a reasonable police officer in the context of this case as “anything other than an expression of a desire to stop answering police questioning” (United States v. Reid, 211 F.Supp.2d 366, 372 [U.S. Dist. Ct., D. Mass.];   cf. People v. Jones, 258 A.D.2d 261, 685 N.Y.S.2d 39, lv. denied 93 N.Y.2d 926, 693 N.Y.S.2d 509, 715 N.E.2d 512).   Indeed, the interrogating officers promptly ceased their initial questioning of defendant following that statement.   It cannot be said here that the error is harmless (see Perkins, 289 A.D.2d at 941, 735 N.Y.S.2d 273), and we note that the People candidly concede in their brief that the incriminating statement was helpful in proving the burglary charge against defendant.   We therefore modify the judgment in appeal No. 1 by reversing that part convicting defendant of burglary in the second degree, granting the motion in part, and suppressing the incriminating statement made by defendant while being transported to arraignment, and we grant a new trial on count one of the indictment.

 We conclude that the court properly denied the remainder of defendant's suppression motion (see People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329, cert. denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383).   To the extent that defendant relies upon trial testimony in challenging the court's determination, his claims are not properly before us (see People v. Davis, 220 A.D.2d 445, 631 N.Y.S.2d 896).  “[D]efendant may not rely upon evidence presented at trial to challenge the court's determination of the suppression motion” (People v. Pucci, 5 A.D.3d 1099, 1099, 773 N.Y.S.2d 729).   The further contentions of defendant regarding the legal sufficiency of the evidence and his sentencing as a second felony offender are not preserved for our review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see 470.15[6][a] ).   The sentence is not unduly harsh or severe.

In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ).   We conclude that the bargained-for sentence is not unduly harsh or severe.   To the extent that the further contention of defendant that he was denied effective assistance of counsel is properly before us (see generally People v. Petgen, 55 N.Y.2d 529, 534-535, 450 N.Y.S.2d 299, 435 N.E.2d 669, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247), we conclude that his contention lacks merit (see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convicting defendant of burglary in the second degree, granting the motion in part, and suppressing the incriminating statement made by defendant while being transported to arraignment and as modified the judgment is affirmed, and a new trial is granted on count one of the indictment.

MEMORANDUM: