THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DEWAYNE BROWN DEFENDANT APPELLANT

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DEWAYNE BROWN, DEFENDANT–APPELLANT.

KA 14–01982

Decided: September 29, 2017

PRESENT:  CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CRAIG P. SCHLANGER OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a firearm (Penal Law § 265.01–b).  Contrary to defendant's contention, Supreme Court properly refused to suppress defendant's statements to the police, which included an admission that he accidentally shot himself with a firearm, inasmuch as defendant was not in custody at the time that he made the statements and Miranda warnings therefore were not required (see generally Miranda v. Arizona, 384 U.S. 436, 467).  “In determining whether a defendant was in custody for Miranda purposes, ‘[t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position’ “ (People v. Kelley, 91 AD3d 1318, 1318, lv denied 19 NY3d 963, quoting People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851).  Here, the evidence at the suppression hearing established that defendant voluntarily sought medical treatment at a walk-in clinic for a gunshot wound to his leg.  The treatment provider reported defendant's gunshot injury to police, as required by Penal Law § 265.25, and the provider instructed defendant to wait for the police to arrive.  A detective responded to the clinic and briefly questioned defendant in a patient room where defendant was waiting with his mother.  The detective testified that he thought that defendant was a victim, rather than a suspect, and thus his initial questions were investigatory in nature.  During the questioning, defendant was not placed under arrest, and was not handcuffed or otherwise restrained.  Under these circumstances, we conclude that “a reasonable person in defendant's position, innocent of any crime, would not have believed that he or she was in custody, and thus Miranda warnings were not required” (People v. Lunderman, 19 AD3d 1067, 1068–1069, lv denied 5 NY3d 830;  see People v. Thomas, 292 A.D.2d 549, 550).  The fact that the detective's questions became accusatory after he observed gunpowder burns on defendant's leg, the presence of which seemed to conflict with defendant's initial statement that he did not see the person who shot him, did not render the questioning custodial in nature (see People v. Davis, 48 AD3d 1086, 1087, lv denied 10 NY3d 861).

Mark W. Bennett

Clerk of the Court