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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Appellant, v. Arthur D. LONG, Defendant-Respondent.

Decided: March 17, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, GREEN, AND HAYES, JJ. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Plaintiff-Appellant. Paul F. Shanahan, Rochester, for Defendant-Respondent.

The People appeal from an order granting that part of the motion of defendant seeking to suppress his statements and the gun seized by police.   We affirm.   A police officer stopped defendant's vehicle because the vehicle's registration was expired.   The officer informed defendant that it was the policy of his department to tow unregistered vehicles, and he therefore asked defendant to exit the vehicle.   The officer then placed defendant in the back of the patrol car in order to give him a citation.   While defendant was in the back of the patrol car, the officer asked him whether there was anything in the vehicle that he should know about.   Defendant responded that there was a gun in the driver's door, and he subsequently made further statements to police.

 Contrary to the contention of the People, the record supports Supreme Court's determination that defendant was in police custody when the officer asked defendant the question concerning the contents of his vehicle.   “In deciding whether a defendant was in custody at the time a statement was given, the test is not what the subjective beliefs of the defendant were, but instead what a reasonable person, innocent of any crime, would have thought if they were in defendant's position” (People v. Smith, 214 A.D.2d 845, 847, 625 N.Y.S.2d 684, lv. denied 86 N.Y.2d 741, 631 N.Y.S.2d 622, 655 N.E.2d 719, citing People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, rearg. denied 26 N.Y.2d 845, 309 N.Y.S.2d 593, 258 N.E.2d 90, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;  see People v. Andrews, 13 A.D.3d 1143, 1144-1145, 787 N.Y.S.2d 750).   The officer testified that defendant was placed in the back of the patrol car, albeit without handcuffs, and could not exit the patrol car.   He further testified that defendant was not free to leave and that a traffic stop for the purpose of issuing a citation is “technically an arrest.”   We thus conclude that the court properly suppressed defendant's initial statement to the officer concerning the gun in the driver's door on the ground that defendant was in custody when he made the statement and had neither received nor waived his Miranda rights (see generally Smith, 214 A.D.2d at 847, 625 N.Y.S.2d 684, citing People v. Smith, 193 A.D.2d 1054, 598 N.Y.S.2d 620, lv. denied 82 N.Y.2d 853, 606 N.Y.S.2d 605, 627 N.E.2d 527), and we further conclude that the court properly suppressed defendant's subsequent statements as the direct consequence of that initial statement (see People v. Campbell, 121 A.D.2d 121, 126, 509 N.Y.S.2d 21, lv. denied 69 N.Y.2d 878, 515 N.Y.S.2d 1025, 507 N.E.2d 1095;  see generally Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441).

Contrary to the further contention of the People, we conclude that the record supports the court's determination that the question to defendant was interrogatory and “designed ․ to elicit the defendant's inculpatory cooperation” (People v. Hardy, 5 A.D.3d 792, 793, 775 N.Y.S.2d 322, lv. denied 3 N.Y.3d 675, 784 N.Y.S.2d 13, 817 N.E.2d 831), particularly in view of the deference afforded the court's credibility determinations (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Gary, 19 A.D.3d 1118, 1119, 796 N.Y.S.2d 820, lv. denied 5 N.Y.3d 828, 804 N.Y.S.2d 42, 837 N.E.2d 741).   Under the circumstances, the officer should have known that the question was “reasonably likely to elicit an incriminating response” from defendant (People v. Ferro, 63 N.Y.2d 316, 322-323, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed and the indictment is dismissed.