PEOPLE v. CRUZ

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

The PEOPLE of the State of New York, Respondent, v. Stewart CRUZ, Appellant.

Decided: February 25, 1999

Before:  MIKOLL, J.P., CREW III, YESAWICH JR., PETERS and GRAFFEO, JJ. Martin J. Mack, Cortland, for appellant. James T. Hayden, District Attorney (John R. Trice of counsel), Elmira, for respondent.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered October 23, 1997, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree.

On April 26, 1996 defendant, a prison inmate, had a confrontation with a correction officer, at which time he threatened to, inter alia, throw feces at the correction officer.   The following day, a search of defendant's cell revealed six cups of urine and feces.   Based upon this discovery and the threats made by defendant the previous day, defendant was searched and taken to the facility's special housing unit.   This search revealed a single-edged razor.   Upon his arrival at the special housing unit, defendant was asked why he was carrying a razor, to which he replied that he was having problems with the Latin Kings, a prison gang.

Defendant subsequently was indicted and charged with promoting prison contraband in the first degree.   Following a Huntley hearing, at which County Court held that defendant's statement could not be used in the prosecution's case-in-chief inasmuch as it was obtained without Miranda warnings, defendant was convicted as charged and sentenced to an indeterminate term of imprisonment of 2 to 6 years, to be served consecutively to any existing sentence.

 On this appeal, defendant contends that County Court committed reversible error when it admitted his statement as rebuttal evidence to impeach his trial testimony.   We disagree.   It is now abundantly clear that a voluntary statement, inadmissible as evidence-in-chief by virtue of a violation of a defendant's Miranda rights, nevertheless may be used to impeach a defendant whose trial testimony is inconsistent with the illegally obtained statement (see, e.g., People v. Maerling, 64 N.Y.2d 134, 140, 485 N.Y.S.2d 23, 474 N.E.2d 231).   Here, County Court made a factual finding that defendant's statement was voluntary and, therefore, such statement was properly used for impeachment purposes.

 We similarly reject defendant's argument that it was error to admit evidence of the existence of the cups of feces and urine found in his cell.   Such testimony was properly admitted to demonstrate the reason for the search of defendant and to counter defendant's assertion that he was the victim of a “frame up”.

ORDERED that the judgment is affirmed.

CREW III, J.

MIKOLL, J.P., YESAWICH JR., PETERS and GRAFFEO, JJ., concur.

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