The People of the State of New York, Respondent, v. Nathan Mack, Defendant–Appellant.

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

The People of the State of New York, Respondent, v. Nathan Mack, Defendant–Appellant.

4666

Decided: March 31, 2011

Gonzalez, P.J., Friedman, Moskowitz, Freedman, Román, JJ. Steven Banks, The Legal Aid Society, New York (Désirée Sheridan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David C. Bornstein of counsel), for respondent.

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Judgment, Supreme Court, New York County (Thomas A. Farber, J.), rendered December 11, 2008, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

The court properly denied defendant's motion to suppress physical evidence and statements.   There is no basis for disturbing any of the court's credibility determinations (see People v. Prochilo, 41 N.Y.2d 759, 761 [1977] ).

The record supports the court's finding that an officer saw defendant picking up a pistol and placing it in his jacket pocket.   This provided the officer with probable cause to pursue and arrest defendant.

Defendant did not preserve his claim that the police should have obtained a warrant before searching his jacket, and the hearing court did not “expressly decide[ ]” that issue (see People v. Turriago, 90 N.Y.2d 77, 83–84 [1997] ).   We decline to review this claim in the interest of justice.   As an alternative holding, we reject it on the merits since the jacket was properly searched incident to a lawful arrest (see People v. Smith, 59 N.Y.2d 454 [1983] ).   Although defendant testified at the hearing that he discarded his jacket before he was apprehended, the search would still have been lawful under that version of the facts, because this would have constituted an abandonment in the course of a lawful pursuit (see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 110 [1996] ).

The court properly determined that defendant's post-Miranda statements were sufficiently attenuated from earlier statements that had not been preceded by Miranda warnings.   The pre-Miranda statements were made during sporadic, casual conversation between defendant and the arresting officer during processing, in which the officer asked a few questions that followed up on defendant's spontaneous statements and inquiries about his case.   Although the officer should have preceded his questions with Miranda warnings, there was a pronounced break between defendant's inadmissible statements and his later statements, made after more focused questioning by other officers and an Assistant District Attorney (see People v. White, 10 NY3d 286, 291 [2008], cert denied 555 U.S. _, 129 S Ct 221 [2008];  People v. Paulman, 5 NY3d 122, 130–131 [2005] ).   Furthermore, defendant demonstrated an unqualified desire to speak to the police from the time of his arrest.   Defendant was eager to give what he considered to be an exculpatory or mitigating explanation for his possession of the pistol.   We have considered and rejected defendant's remaining claims regarding his statements.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK