People v. Brown

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before PINE
• Citation: People v. Brown, 601 N.Y.S.2d 727, 195 A.D.2d 1055 (N.Y. App. Div. 1993)
• Decision Date: 16 July 1993
• Parties: PEOPLE of the State of New York, Respondent, v. Kenneth BROWN, Appellant.

Page 727

601 N.Y.S.2d 727

195 A.D.2d 1055

PEOPLE of the State of New York, Respondent, v. Kenneth BROWN, Appellant.

Supreme Court, Appellate Division Fourth Department.

July 16, 1993.

Edward J. Nowak by Kathleen McDonough, Rochester, for appellant.

Howard R. Relin by Robert Mstrocola, Rochester, for respondent.

Before PINE, J.P., and FALLON, BOOMER, DAVIS and BOEHM, JJ.

MEMORANDUM:

Defendant was convicted of murder in the second degree, following a jury trial, for the shooting death of his girlfriend's sister. Reversal of the conviction is required because defendant's absence from the Sandoval hearing held in chambers deprived him of his constitutional right to be present during all material stages of the trial (see, People v. Beasley, 80 N.Y.2d 981, 982, 592 N.Y.S.2d 644, 607 N.E.2d 791, rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393; People v. Dokes, 79 N.Y.2d 656, 662, 584 N.Y.S.2d 761, 595 N.E.2d 836; People v. Young, 195 A.D.2d 1041, 601 N.Y.S.2d 878 [decided herewith]; People v. Towndrow, 187 A.D.2d 194, 197, 594 N.Y.S.2d 469).

We further conclude that Supreme Court erroneously denied defendant's suppression motion. While defendant was being handcuffed, a police officer asked him if an ammunition clip in plain view between the cushions of the couch, where defendant had been sitting, belonged to him. Defendant responded that it did. We find that defendant's response, which was not preceded by Miranda warnings (see, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), was the product of custodial interrogation and must therefore be suppressed.

Defendant contends for the first time on appeal that all subsequent oral and written statements made by him that day, although preceded by Miranda warnings, must be suppressed as the product of a single continuous process of custodial interrogation. That issue was not raised before the suppression court and is therefore not preserved for appellate review (People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363). In any event, the contention lacks merit. After defendant was handcuffed, he was taken outside to a waiting police car where he was advised of his Miranda rights. Defendant indicated that he wished to waive those rights and speak to the officer. Defendant subsequently made oral and written statements to the police detailing his involvement in the shooting. We conclude that defendant was not "subjected to such a continuous interrogation that the...