PEOPLE v. CAMPBELL (2024)

Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered October 7, 2020, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.

The inculpatory statement by defendant was not the result of a violation of (Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1980]).  Although the police accompanied the parole officer, who had probable cause to take defendant into custody, to defendant's home, they never entered defendant's apartment, and the parole officer transferred custody of defendant to the police outside of the apartment (see People v. Garvin, 30 N.Y.3d 174, 181–182, 66 N.Y.S.3d 161, 88 N.E.3d 319 [2017], cert denied ––– U.S. ––––, 139 S.Ct. 57, 202 L.Ed.2d 20 [2018];  People v. Samuel, 92 A.D.3d 466, 938 N.Y.S.2d 69 [1st Dept. 2012], lv denied 19 N.Y.3d 1029, 947 N.Y.S.2d 416, 970 N.E.2d 439 [2012]).  The parole officer, who had independently viewed a video of defendant's participation in a robbery, was not acting as an agent of the police, as her taking of defendant into custody was “rationally and reasonably related to the performance of [her] duty as a parole officer” (see People v. Candelaria, 63 A.D.2d 85, 89, 406 N.Y.S.2d 783 [1st Dept. 1978] [internal quotation marks omitted]).  In any event, even if there had been a Payton violation, defendant's statement was attenuated from the unlawful arrest, since there was an interval of over nine hours after the arrest and no flagrant police misconduct (see People v. Harris, 63 A.D.3d 480, 480, 880 N.Y.S.2d 640 [1st Dept. 2009], lv denied 13 N.Y.3d 796, 887 N.Y.S.2d 546, 916 N.E.2d 441 [2009]).

Nevertheless, the court erred in declining to suppress defendant's statement.  Without advising defendant of his Miranda rights, a detective asked defendant, “[W]hat do they have you for?” and defendant responded, “[T]hey have me here for some robbery, but it wasn't me.  I was in the cab, but it was my friend who pulled out the knife.”  The court suppressed the first statement as being made in response to an improper custodial interrogation, but declined to suppress the second on the ground that it was not responsive to the interrogation but was given spontaneously and voluntarily.  The second statement should also have been suppressed because, like the first, it was not spontaneous, but responsive to the detective's question (see People v. Lucas, 53 N.Y.2d 678, 680, 439 N.Y.S.2d 99, 421 N.E.2d 494 [1981]).  However, any error was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

We perceive no basis for reducing the sentence.