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

The PEOPLE of the State of New York, Respondent, v. Jose MEJIA, Defendant-Appellant.

Decided: July 02, 2009

PRESENT:  SMITH, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the first degree (Penal Law § 125.27[1][a][vii];  [b] ) and robbery in the first degree (§ 160.15 [2] ).   Contrary to defendant's contention, County Court properly admitted the trial testimony of a witness concerning an admission by silence by defendant (see People v. Olewine, 164 A.D.2d 971, 559 N.Y.S.2d 854;  see generally People v. Lord, 103 A.D.2d 1032, 1033, 478 N.Y.S.2d 425, lv. denied 63 N.Y.2d 776, 481 N.Y.S.2d 1030, 470 N.E.2d 875).   We reject the further contention of defendant that the court erred in denying that part of his omnibus motion seeking to suppress his sneakers.  “In reviewing a determination of the suppression court, great weight must be accorded its decision because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous” (People v. Stokes, 212 A.D.2d 986, 987, 623 N.Y.S.2d 55, lv. denied 86 N.Y.2d 741, 631 N.Y.S.2d 622, 655 N.E.2d 719).   Here, the suppression court credited the testimony of the police officers that, when they arrived at defendant's house, defendant asked his mother for his sneakers, and his mother gave the sneakers to an officer.   The record thus supports the court's determination that the police lawfully obtained the sneakers from defendant's mother in accordance with defendant's request.

 We agree with defendant, however, that the court erred in denying those parts of his omnibus motion seeking to suppress his statements to the police.   The court again credited the testimony of the police officers but, contrary to the court's determination, we conclude that their testimony establishes that defendant was in custody during the interrogation.   The police officers, who had knowledge that a codefendant had implicated defendant in the murder, testified that they went to defendant's home and asked defendant to accompany them to the police station.   Although defendant agreed, he was frisked and handcuffed, and the handcuffs were not removed until defendant was placed in a secure interview room.   In addition, defendant was escorted when he needed to use the bathroom.   The police began to question defendant about the shooting but did not administer Miranda warnings until after he had made incriminating statements.   We agree with defendant that a reasonable person, innocent of any crime, would have believed under those circumstances that he or she was in custody (see People v. Rhodes, 49 A.D.3d 668, 669, 853 N.Y.S.2d 375, lv. denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411;  People v. Ramos, 27 A.D.3d 1073, 1074-1075, 813 N.Y.S.2d 285, lv. dismissed 6 N.Y.3d 897, 817 N.Y.S.2d 632, 850 N.E.2d 679;  People v. Evans, 294 A.D.2d 918, 919, 741 N.Y.S.2d 811, lv. dismissed 98 N.Y.2d 768, 752 N.Y.S.2d 8, 781N.E.2d 920;  see generally 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).

In light of our determination, we do not review defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, those parts of the motion seeking to suppress statements made by defendant to the police are granted and a new trial is granted on counts one through four and six and seven of the indictment.