PEOPLE v. CLARKE (2018)

Judgment, Supreme Court, Bronx County (April A. Newbauer, J.), rendered February 25, 2014, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously affirmed.

The court properly denied defendant's motion to suppress statements.  The first statement, made outside defendant's home, in response to an officer's inquiry as to “what happened,” did not require Miranda warnings because it was not the product of interrogation, and because defendant was not in custody (see People v. Flores, 153 A.D.3d 1186, 62 N.Y.S.3d 47 [1st Dept. 2017];  People v. Santiago, 77 A.D.3d 422, 908 N.Y.S.2d 345 [1st Dept. 2010], lv denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010];  People v. Taylor, 57 A.D.3d 327, 869 N.Y.S.2d 442 [1st Dept. 2008], lv denied 12 N.Y.3d 860, 881 N.Y.S.2d 671, 909 N.E.2d 594 [2009] ).

Although several officers were present, they did not have their guns drawn, did not handcuff or restrain defendant in any way, and did not otherwise create a coercive or police-dominated atmosphere (see Matter of Kwok T., 43 N.Y.2d 213, 219, 401 N.Y.S.2d 52, 371 N.E.2d 814 [1977];  People v. Rodney P. [Anonymous], 21 N.Y.2d 1, 9–10, 286 N.Y.S.2d 225, 233 N.E.2d 255 [1967] ).  A reasonable innocent person in defendant's position would not have thought that he was in custody (see 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] ), but rather “that the police were still in the process of gathering information about the alleged incident prior to taking any action” (People v. Dillhunt, 41 AD3d 216, 217, 839 N.Y.S.2d 18 [1st Dept. 2007], lv denied 10 N.Y.3d 764, 854 N.Y.S.2d 325, 883 N.E.2d 1260 [2008] ).  The officer's expectation that defendant would be arrested, based on the victim's complaint, was not conveyed to defendant.  “A policeman's unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time;  the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation” (Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 [1984];  see also Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 [1994];  United States v. Mendenhall, 446 U.S. 544, 554 n. 6, 100 S.Ct. 1870, 64 L.Ed.2d 497 [1980] ).

Because the first statement was lawfully obtained, there is no basis for suppression of defendant's subsequent statement, which was entirely spontaneous.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's credibility determinations.  The element of physical injury was satisfied by proof showing that the victim received stitches, and had a scar at the time of trial, which establishes impairment of physical condition (see People v. Tejeda, 78 N.Y.2d 936, 573 N.Y.S.2d 633, 578 N.E.2d 431 [1991] ).  That element was also satisfied by proof that defendant stabbed the victim in the shoulder, creating a one-inch wound, “a lot” of bleeding, and a reported pain level of “5 out of 10,” which permits an inference of substantial, or “more than slight or trivial” pain (People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007];  see also People v. Rojas, 61 N.Y.2d 726, 727–728, 472 N.Y.S.2d 615, 460 N.E.2d 1100 [1984] ).