PEOPLE v. SYLVESTER (2020)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew Sciarrino, Jr., J.), rendered January 7, 2019, convicting him of assault in the second degree, unlawful imprisonment in the second degree, criminal possession of a weapon in the fourth degree, and menacing in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statement to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant got into a verbal altercation with the complainant, a tenant who rented a bedroom in the defendant's home located in Brooklyn. The altercation escalated into a physical altercation during which the defendant ultimately used a machete to slash the complainant on the leg. Evidence adduced at the suppression hearing established that the police arrived to find the two men on the ground in the hallway outside the complainant's bedroom, the defendant on top of the complainant with his fist raised and “blood everywhere on the ground.” The two men were separated and the defendant was handcuffed and escorted by police out of the house to the sidewalk. After speaking with the complainant, the police officer approached the defendant and, without providing Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694), asked the defendant, “what happened” and “I need to hear both sides of the story. Tell me what happened.” The defendant responded, making an incriminating statement. At no time did the police officer see the defendant in possession of a machete. The Supreme Court denied suppression, finding that the investigatory questions that were asked were to clarify the nature of the situation that the officer confronted. At trial, the defendant presented a justification defense. The jury returned a verdict finding the defendant guilty of, inter alia, assault in the second degree and criminal possession of a weapon in the fourth degree. The defendant appeals.

Even giving deference to the hearing court's credibility determinations, we disagree with the court's determination to deny that branch of the defendant's omnibus motion which was to suppress the statement he made to the responding police officer without the benefit of Miranda warnings. Here, the record demonstrates that the police officer's question and statements, “what happened?” and “I need to hear both sides of the story. Tell me what happened” were interrogative rather than investigatory for clarification purposes (cf. People v. Valentin, 118 A.D.3d 823, 987 N.Y.S.2d 227). Furthermore, the defendant was in police custody at the time that he made the subject statement to the police. The evidence presented at the hearing, including, among other things, the officer's testimony that the defendant was handcuffed, in custody, and not free to leave (see People v. Torres, 172 A.D.3d 758, 99 N.Y.S.3d 363; People v. Rivera, 91 A.D.3d 972, 937 N.Y.S.2d 621), established that a reasonable, innocent person would not have believed that he or she was free to leave at the time that the defendant made his statement to the officer (see People v. Jones, 153 A.D.3d 934, 60 N.Y.S.3d 445). Accordingly, the defendant's statement to the police should have been suppressed (see People v. Torres, 172 A.D.3d at 761, 99 N.Y.S.3d 363; People v. Jones, 153 A.D.3d at 934, 60 N.Y.S.3d 445; People v. Payne, 41 A.D.3d 512, 838 N.Y.S.2d 123). However, reversal is not required (see People v. Payne, 41 A.D.3d at 514, 838 N.Y.S.2d 123), since proof of the defendant's guilt, without reference to the statement, was overwhelming and there is no reasonable possibility that the claimed error might have contributed to the defendant's conviction (see People v. Jones, 153 A.D.3d at 934–935, 60 N.Y.S.3d 445; People v. Hillard, 151 A.D.3d 743, 56 N.Y.S.3d 232).

The defendant's contention that the prosecutor's improper remarks during summation deprived him of a fair trial is only partially preserved for appellate review (see CPL 470.05[2]; People v. Escamilla, 168 A.D.3d 758, 91 N.Y.S.3d 197). In any event, this contention is without merit since the challenged remarks were either fair comment on the evidence and the inferences to be drawn therefrom, or were not so egregious as to have deprived the defendant of a fair trial (see People v. Grace, 179 A.D.3d 1092, 1093, 114 N.Y.S.3d 668; People v. Lopez, 150 A.D.3d 1266, 52 N.Y.S.3d 902; People v. Hatcher, 130 A.D.3d 648, 13 N.Y.S.3d 459; People v. Gonzalez, 83 A.D.3d 1093, 921 N.Y.S.2d 545; cf. People v. Dawson, 178 A.D.3d 719, 115 N.Y.S.3d 360).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

BALKIN, J.P., BARROS, CONNOLLY and WOOTEN, JJ., concur.