PEOPLE v. JEAN (2004)

Appeal by the defendant from (1) a judgment of the County Court, Rockland County (Kelly, J.), rendered November 21, 2002, convicting him of murder in the second degree, manslaughter in the first degree, assault in the second degree, assault in the third degree, and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence, and (2) a resentence of the same court imposed March 12, 2003, resentencing him on the count of manslaughter in the first degree.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement authorities.

ORDERED that the judgment and resentence are affirmed.

 Contrary to the defendant's contention, the County Court properly denied that branch of his omnibus motion which was to suppress his statements to law enforcement authorities.   Viewing the totality of the circumstances (see People v. Casassa, 49 N.Y.2d 668, 681, 427 N.Y.S.2d 769, 404 N.E.2d 1310, cert. denied 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 50;  People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318), a reasonable person in the defendant's position, innocent of any criminal wrongdoing, would not have believed that he was in police custody before receiving Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694;  People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89).   The factual findings and credibility determinations of the County Court following the suppression hearing are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Leggio, 305 A.D.2d 518, 519, 761 N.Y.S.2d 74).   The evidence at the hearing established that the defendant was placed in restraints by hospital personnel for his own safety, and not for the purpose of a police interrogation (see People v. Ripic, 182 A.D.2d 226, 235, 587 N.Y.S.2d 776).   In any event, the police detective did not question the defendant about the crime until after he advised the defendant of his constitutional rights and obtained a voluntary written waiver from the defendant (see Miranda v. Arizona, supra;  People v. Lovette, 212 A.D.2d 639, 640, 622 N.Y.S.2d 588;  People v. Rose, 187 A.D.2d 617, 589 N.Y.S.2d 931).   By that time, the defendant had calmed down and gave coherent answers to the detective's questions in an effort to exculpate himself (see People v. Bongiorno, 243 A.D.2d 719, 663 N.Y.S.2d 861;  People v. Womble, 161 A.D.2d 679, 555 N.Y.S.2d 452;  cf. People v. Turkenich, 137 A.D.2d 363, 529 N.Y.S.2d 385).

The evidence was also sufficient to establish that the defendant willingly accompanied the police to the precinct where he again voluntarily waived his Miranda rights (see Miranda v. Arizona, supra) before making a further statement (see People v. Leggio, supra;  see also People v. Diaz, 84 N.Y.2d 839, 616 N.Y.S.2d 900, 640 N.E.2d 1134).

 Furthermore, the County Court correctly found that the defendant's girlfriend was not acting as an agent of the police when she spoke to the defendant before he signed a second written statement (see People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283, 480 N.E.2d 1065).   There is no evidence to demonstrate that she was acting at the instigation or under the supervision of the police (see People v. Lewis, 273 A.D.2d 254, 255, 709 N.Y.S.2d 572;  People v. Del Duco, 247 A.D.2d 487, 488, 668 N.Y.S.2d 704;  People v. Jemmott, 144 A.D.2d 694, 695, 535 N.Y.S.2d 84;  People v. Galloway, 138 A.D.2d 735, 737, 526 N.Y.S.2d 549;  cf. People v. Eberle, 265 A.D.2d 881, 882-883, 697 N.Y.S.2d 218).

The physical evidence was properly admitted because the defendant voluntarily consented to a search of his residence (see People v. Rose, supra;  People v. Auxilly, 173 A.D.2d 627, 628, 570 N.Y.S.2d 212;  People v. Zimmerman, 101 A.D.2d 294, 297, 475 N.Y.S.2d 127), as did his girlfriend (see People v. Cosme, 48 N.Y.2d 286, 291-293, 422 N.Y.S.2d 652, 397 N.E.2d 1319;  People v. Lopez, 291 A.D.2d 279, 738 N.Y.S.2d 308;  People v. Melo, 98 A.D.2d 754, 755, 469 N.Y.S.2d 465).

The defendant's claim that the jury verdict was inconsistent (see CPL 300.30[5] ) is unpreserved for appellate review (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  People v. Skeeters, 180 A.D.2d 834, 580 N.Y.S.2d 451).   In any event, the verdict was not inconsistent (see Penal Law §§ 125.20[4], 125.25[2];  People v. Trappier, 87 N.Y.2d 55, 58-59, 637 N.Y.S.2d 352, 660 N.E.2d 1131;  People v. Taylor, 169 A.D.2d 743, 744-745, 564 N.Y.S.2d 484;  People v. Rivera, 59 A.D.2d 675, 398 N.Y.S.2d 538 [Silverman, J., concurring];  see also People v. Payne, 3 N.Y.3d 266, 786 N.Y.S.2d 116, 819 N.E.2d 634;  People v. Poplis, 30 N.Y.2d 85, 330 N.Y.S.2d 365, 281 N.E.2d 167;  cf. People v. Gonzalez, 1 N.Y.3d 464, 468, 775 N.Y.S.2d 224, 807 N.E.2d 273;  People v. Gallagher, 69 N.Y.2d 525, 529-530, 516 N.Y.S.2d 174, 508 N.E.2d 909;  People v. Robinson, 145 A.D.2d 184, 185, 538 N.Y.S.2d 122, affd. 75 N.Y.2d 879, 554 N.Y.S.2d 473, 553 N.E.2d 1021).

Any prejudice to the defendant resulting from the County Court's improper pretrial instruction was obviated by the final charge given to the jury at the trial (see People v. Valdes, 283 A.D.2d 187, 726 N.Y.S.2d 8;  People v. Simon, 224 A.D.2d 458, 459, 638 N.Y.S.2d 113).

The defendant's trial attorney provided meaningful representation (see People v. Harris, 99 N.Y.2d 202, 210, 753 N.Y.S.2d 437, 783 N.E.2d 502;  People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Corona, 173 A.D.2d 484, 485, 570 N.Y.S.2d 105;  cf. People v. Wandell, 75 N.Y.2d 951, 952, 555 N.Y.S.2d 686, 554 N.E.2d 1274).

The defendant's remaining contentions are without merit.