PEOPLE v. SOTOMAYOR (2020)

Judgment of conviction (Melissa A. Crane, J.), rendered May 11, 2016, affirmed.

The court properly denied defendant's motion to suppress his statements to the police. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761 [1977]). The police went to defendant's room at a homeless shelter to investigate a recently reported knife incident. The record establishes that the questioning of defendant at the doorway to his room, while the officer remained in the hallway, holding the door open with his foot, was not custodial, so that Miranda warnings were not required. The standard of custody is what a reasonable innocent person in defendant's position would have believed, irrespective of any unconveyed subjective intent of the police to make an arrest (see Stansbury v. California, 511 U.S. 318, 325 [1994]; People v. Yukl, 25 N.Y.2d 585 [1969], cert. denied 400 U.S. 851 [1970]). Here, the officer did not use force or threats, defendant was free to move about his room and sat on the bed without the officer following him inside, defendant was cooperative and the questioning was investigatory rather than accusatory (see People v. Chaplin, 134 A.D.3d 1148, 1150 [2015], lv denied 27 N.Y.3d 1067 [2016]; People v. Dillhunt, 41 A.D.3d 216, 217 [2007], lv denied 10 N.Y.3d 764 [2008]; see also People v. Jeremiah, 147 A.D.3d 1199 [2017], lv denied 29 N.Y.3d 1033 [2017]).

Further, once defendant retreated to the bed, the officer observed two knives plainly visible. In the circumstances, the officer acted properly to ensure his own safety when he asked defendant to step into the hallway (see People v. Benjamin, 51 N.Y.2d 267, 270 [1980]; People v. Jiminez, 101 A.D.3d 569 [2012], lv denied 20 N.Y.3d 1100 [2013]; People v. Wylie, 244 A.D.2d 247, 249 [1997], lv denied 91 N.Y.2d 946 [1998]). Since defendant left the room voluntarily, and, indeed, was not immediately handcuffed or otherwise restrained when he entered the hallway, there was no violation of Payton v. New York (445 U.S. 573 [1980]) (see People v. Minley, 68 N.Y.2d 952 [1986]). In any event, even if Payton were implicated, exigent circumstances justified any warrantless entry into defendant's room (see People v. McBride, 14 N.Y.3d 440, 446 [2010]).

The trial court properly admitted into evidence, under the present sense impression exception to the hearsay rule, the recordings of two telephone calls made by shelter staff members to the 911 emergency number (see People v. Buie, 86 N.Y.2d 501, 512-513 [1995]). The staff members were clearly describing substantially contemporaneous events that they personally observed either as they were unfolding or immediately afterwards (see People v. Vasquez, 88 N.Y.2d 561, 575 [1996]; see also People v. Cantave, 21 N.Y.3d 374, 381 [2013], cert. denied 21 N.Y.3d 374 [2013]), the substance of which was sufficiently corroborated by content of each others' 911 call and the testimony at trial. There was no violation of the Confrontation Clause because the nontestifying caller's statements addressing an ongoing emergency, i.e., seeking police intervention as defendant was still at large with a knife, were nontestimonial (see Davis v. Washington, 547 U.S. 813, 822 [2006]; People v. Nieves–Andino, 9 N.Y.3d 12, 15 [2007]; People v. Anonymous, 174 A.D.3d 434 [2019], lv denied 34 N.Y.3d 1075 [2019]).

Assuming, arguendo, that the trial court erred in any of the above-discussed rulings, the evidence of guilt was overwhelming (see People v. Crimmins, 36 N.Y.2d 230, 243 [1975]).

Per Curiam.