People v. Anderson

• Decision Date: 23 December 1988
• Citation: 145 A.D.2d 939,536 N.Y.S.2d 616
• Parties: PEOPLE of the State of New York, Respondent, v. Dean J. ANDERSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 616

536 N.Y.S.2d 616

145 A.D.2d 939

PEOPLE of the State of New York, Respondent, v. Dean J. ANDERSON, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 23, 1988.

Frank J. Nebush, Jr. by Esther Cohen Lee, Utica, for appellant.

Barry J. Donalty by Dawn Catera, Utica, for respondent.

Before DILLON, P.J., and CALLAHAN, GREEN, BALIO and LAWTON, JJ.

MEMORANDUM:

The first issue on this appeal is whether defendant had been seized without probable cause before he made incriminating statements (see, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824). It is conceded by defendant that initially he voluntarily accompanied the police officers to the station for questioning. He was not arrested, nor was he handcuffed or otherwise restrained before or at the time of his arrival at the station. He accompanied the officers to the interview room, where he was fully advised of his Miranda rights, voluntarily waived those rights, and agreed to speak with the officers. Although defendant repeatedly denied any involvement in the crimes, he subsequently admitted their commission and agreed to sign a statement. Resolution of the issue presented turns on whether the officers' conduct in continuing to question defendant after he denied any involvement in the crimes caused the consequential encounter to ripen into a seizure on less than probable cause (see, INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247; People v. McNeeley, 77 A.D.2d 205, 433 N.Y.S.2d 293).

There is nothing in the record to suggest that such a ripening occurred. While defendant, who was not a stranger to law enforcement (see, People v. Wilson, 96 A.D.2d 653, 466 N.Y.S.2d 518), was not specifically told that he was free to leave the police station, he never made a request to leave (cf., People v. Rivers, 129 A.D.2d 983, 514 N.Y.S.2d 292) and was not physically compelled to remain. He never withdrew his agreement to speak with the officers and it appears that he was free to leave at any time. The record thus supports the hearing court's determination that the encounter was voluntary and that defendant was not in custody until after he made incriminating statements (see, People v. Yukl, 25 N.Y.2d 585, 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; People v. McNeeley, supra ). It follows that suppression of the statements as the fruit of an illegal detention was properly denied.

Defendant also contends that at the Huntley hearing he was denied his constitutional right under the Sixth Amendment to have compulsory process to obtain a witness in his favor (see, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019; see also, People v. Morales, 37 N.Y.2d 262, 372 N.Y.S.2d 25, 333 N.E.2d 339). The only witness called by the...