PEOPLE v. THOMAS (2004)

Judgment, Supreme Court, Bronx County (Joseph Fisch, J. at hearing;  Troy K. Webber, J. at jury trial and sentence), rendered April 12, 2002, convicting defendant of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, and sentencing him to consecutive terms of 5 years and 1 to 3 years respectively, unanimously affirmed.

 The hearing court properly denied defendant's motion to suppress the statements he made on August 24, 2000.   There was no custodial interrogation requiring Miranda warnings.   Defendant was hospitalized for a gunshot wound he received on August 18, and in the days following his injury the police conducted several interviews that were brief, spaced many hours apart, and solely concerned with defendant's status as a shooting victim and the possible identification of his assailants.   Defendant was unguarded and unrestrained in a hospital room he shared with others in which visitors were free to come and go and, as his condition allowed, he was free to leave or transfer to another hospital (see People v. Brown, 295 A.D.2d 442, 743 N.Y.S.2d 554 [2002], lv. denied 99 N.Y.2d 580, 755 N.Y.S.2d 716, 785 N.E.2d 738 [2003];  People v. Ripic, 182 A.D.2d 226, 231-232, 587 N.Y.S.2d 776 [1992], appeal dismissed 81 N.Y.2d 776, 594 N.Y.S.2d 712, 610 N.E.2d 385 [1993] ).   Defendant was not placed under police guard until August 26, two days after he made the statements at issue.   He freely spoke to his interviewers on August 24, who continued to speak to him as a complainant and not a defendant, and, although they mentioned that they had viewed a surveillance tape of the shooting, did nothing to suggest what was on the tape or that they did not believe his version of the incident.   Defendant ultimately admitted that he had possessed and fired a weapon during the incident, but claimed self-defense.   At the end of his final statement, defendant expressly acknowledged that he understood he was not under arrest.

 We conclude that a reasonable innocent person in defendant's situation would not have considered himself to be in custody, even after he admitted that he possessed and fired a gun (see Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 [1995];  People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ).   Defendant's statement was almost completely exculpatory, and under all the circumstances a reasonable person would have believed, at most, that the police were contemplating arresting him in the near future (which is what actually happened).   Furthermore, there was no evidence that defendant's medical condition affected the voluntariness of his statement (see People v. Pearce, 283 A.D.2d 1007, 725 N.Y.S.2d 247 [2001], lv. denied 96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666 [2001] ), and we conclude that voluntariness was established beyond a reasonable doubt.   In any event, were we to find that the statements at issue should have been suppressed, we would find the error to be harmless in view of the overwhelming evidence of defendant's guilt, including the surveillance tape.

 The court properly dismissed a juror based on her inability to concentrate due to severe financial hardship caused by her jury service, and due to her nephew's recent arrest (see People v. Cook, 275 A.D.2d 1020, 713 N.Y.S.2d 586 [2000], lv. denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145 [2000] ).   The court made a thorough inquiry, reserved decision, and observed the juror's demeanor as testimony continued.   It later discharged her, noting for the record that it had observed that the juror was inattentive.   The court's determination, based in part on its unique opportunity to observe the juror's demeanor, is entitled to great weight.

The court properly imposed consecutive sentences (see People v. Sell, 283 A.D.2d 920, 922, 725 N.Y.S.2d 486 [2001], lv. denied 96 N.Y.2d 867, 730 N.Y.S.2d 42, 754 N.E.2d 1125 [2001];  People v. Perez, 278 A.D.2d 2, 717 N.Y.S.2d 135 [2000], lv. denied 96 N.Y.2d 804, 726 N.Y.S.2d 382, 750 N.E.2d 84 [2001];  People v. Rowe, 271 A.D.2d 217, 218, 707 N.Y.S.2d 27 [2000], lv. denied 95 N.Y.2d 870, 715 N.Y.S.2d 225, 738 N.E.2d 373 [2000] ).

Defendant's challenge to the court's justification charge is unpreserved and we decline to review it in the interest of justice.