PEOPLE v. SMITH

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The PEOPLE of the State of New York, Respondent, v. Robert SMITH, Defendant-Appellant.

Decided: May 25, 2010

MAZZARELLI, J.P., SWEENY, CATTERSON, RENWICK, MANZANET-DANIELS, JJ. Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and O'Melveny & Myers LLP, New York (Sarah B. Hargrove of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J. at suppression hearing; Robert Straus, J. at plea and sentence), rendered January 19, 2007, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.

The court properly denied defendant's motion to suppress a statement that defendant claimed to be the product of an unlawful detention. The police received an anonymous tip that included detailed clothing descriptions of a man and a woman at a specific location and stated that the man had just given the woman a handgun, which she placed in her purse. The police immediately arrived at that location and saw people running, including defendant and a woman, who met the descriptions of the man and woman referred to in the tip. After the police found a purse under a nearby parked car that contained the woman's photo identification and a handgun, they arrested defendant and the woman and took them to the station house. About nine hours later, the woman made a statement connecting defendant to the weapon. Shortly thereafter, defendant waived his Miranda rights and, after initially denying knowledge of the weapon, he admitted possessing it. Regardless of whether the police had probable cause to take defendant into custody, his statement was sufficiently attenuated from the taint of the unlawful arrest (see e.g. People v. Divine, 21 AD3d 767 [2005], affd 6 NY3d 790 [2006]; People v. Doyle, 295 A.D.2d 446, 447 [2002], lv denied 98 N.Y.2d 730 [2002]; People v. McCloud, 247 A.D.2d 409 [1998], lv denied 91 N.Y.2d 975 [1998] ). Defendant's confession was “sufficiently an act of free will to purge the primary taint” (Wong Sun v. United States, 371 U.S. 471, 486 [1963] ).