PEOPLE v. GODFREY (2021)

Judgment, Supreme Court, New York County (Robert M. Stolz, J. at suppression hearing;  Daniel P. Conviser, J. at jury trial and sentencing), rendered June 26, 2018, convicting defendant, of attempted assault in the first degree, assault in the second degree, criminal possession of a weapon in the third degree and unlawful possession of ammunition, and sentencing him, as a second violent felony offender, to an aggregate term of seven years, unanimously affirmed.

The physical injury element of second-degree assault was supported by legally sufficient evidence.  The jury could have reasonably found, from all the evidence including a videotape, audio evidence, and police observations, that defendant's repeated striking of the victim in the face with what appeared to be a firearm, resulting in a bloody gash, exceeded mere “petty slaps, shoves, kicks and the like” (Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980]), and caused “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]).  Defendant's legal sufficiency claim regarding the attempted first-degree assault conviction is unpreserved and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find, as to both of the convictions at issue, that the verdict 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]).

The court properly denied defendant's motion to suppress a statement he made to the police.  Although defendant was in custody, and had not yet received Miranda warnings, his statement, made after an officer answered his question regarding the nature of the police activity that was being conducted while he was detained, was spontaneous and not the result of interrogation or its functional equivalent (see Rhode Island v. Innis, 446 U.S. 291, 300–301, 100 S.Ct. 1682, 64 L.Ed.2d 297 [1980]).

An incriminating statement is the product of interrogation or its functional equivalent, if, considering the totality of the circumstances (see People v. Mascall, 149 A.D.3d 525, 52 N.Y.S.3d 57 [1st Dept. 2017], lv denied 29 N.Y.3d 1130, 64 N.Y.S.3d 680, 86 N.E.3d 572 [2017];  Matter of Jahmeka W., 130 A.D.3d 437, 437, 13 N.Y.S.3d 372 [1st Dept. 2015], lv denied 26 N.Y.3d 909, 2015 WL 6182321 [2015];  People v. Bracey, 123 A.D.3d 419, 420, 997 N.Y.S.2d 420 [1st Dept. 2014], lv denied 25 N.Y.3d 1198, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015]), the “incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response” (Rhode Island v. Innis, 446 U.S. at 303, 100 S.Ct. 1682).

Here, based on the credited, uncontroverted hearing testimony, the officer, in response to defendant's inquiry regarding the nature of the police activity that led to him being placed in custody, told defendant that the police were executing a search warrant, that it applied to his entire apartment, and that they were searching for a firearm (see People v. Anonymous, 187 A.D.3d 512, 512, 133 N.Y.S.3d 254 [1st Dept. 2020], lv denied 36 N.Y.3d 969, 138 N.Y.S.3d 449, 162 N.E.3d 678 [2020];  see also People v. Mercado, 92 A.D.3d 458, 939 N.Y.S.2d 335 [1st Dept. 2012], lv denied 18 N.Y.3d 996, 945 N.Y.S.2d 650, 968 N.E.2d 1006 [2012]).  The officer's answer to defendant was immediate, factual, responsive, and not overly explicit or detail-laden (see People v. Rivers, 56 N.Y.2d 476, 480, 453 N.Y.S.2d 156, 438 N.E.2d 862 [1982]).  Defendant then volunteered an incriminating statement, and regardless of how the officer's next remark could be viewed, that remark was followed only by defendant's repetition of essentially the same statement he had just made.  In light of the totality of the circumstances, particularly defendant's initiation of the conversation, the content of the officer's responses, and the brevity of the conversation, defendant's incriminating statements were not the product of words or actions on the part of the officer that he should have known were reasonably likely to elicit incriminating responses.