People v. Burnett

• Citation: 99 A.D.2d 786,472 N.Y.S.2d 37
• Parties: The PEOPLE, etc., Respondent, v. Wallace BURNETT, Appellant.
• Decision Date: 14 February 1984
• Court: New York Supreme Court Appellate Division

Page 37

472 N.Y.S.2d 37

99 A.D.2d 786

The PEOPLE, etc., Respondent, v. Wallace BURNETT, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 14, 1984.

Marshall L. Goldstein, White Plains, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Diane E. Selker and Gerald D. Reilly, Asst. Dist. Attys., White Plains, of counsel), for respondent.

Before TITONE, J.P., and LAZER, THOMPSON and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Westchester County, rendered April 15, 1981, convicting him of burglary in the third degree, grand larceny in the second degree and criminal possession of stolen property in the first degree, upon a plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant's motion to suppress certain statements and physical evidence.

Judgment affirmed.

At about 5:40 A.M. on August 11, 1980, two police officers observed a 1978 Lincoln Continental parked on a side street adjacent to Kisco Avenue in Mount Kisco, New York. The automobile had not been there an hour before and its engine was warm. A loud crash was heard and one of the officers observed the defendant walking in a southerly direction. The defendant was directed to stop and, while the officer did not draw his gun, he walked up to the defendant and asked him what he was doing in the neighborhood. Defendant, who appeared to be nervous, claimed that he was lost and gave a name which was later determined to be false.

At that point, another person was observed. A man emerged from behind some nearby bushes and was detained. Backup assistance was solicited and a box containing two typewriters, three adding machines and an attache case was found near the bushes. The two men were placed under arrest. Further investigation revealed that the door on an adjacent building had been jimmied.

Both men were given Miranda warnings at the police station and, while defendant refused to sign a waiver, he did not request counsel. After defendant was searched, a detective showed him a photograph of footprints in a fire extinguisher spray and told him that he was stupid in using a hallway that had not been traversed for five years. The photograph was not, in fact, of the hallway that defendant had burglarized.

A few minutes later, the defendant was taken to another room and, in response to questioning, stated that his car had broken down on the parkway and that he had left it to look for help. Defendant was then brought to the detention area, at which point he requested to speak to the detective alone. He was readvised of his rights, stated that he understood them, and after mentioning the photograph and receiving a response from the detective, made a full confession.

A pretrial motion to suppress all physical evidence and the statement was denied. Defendant thereupon pleaded guilty. We affirm.

The police encounter on the street clearly passes constitutional muster (People v. Singleton, 41 N.Y.2d 402, 393 N.Y.S.2d 353, 361 N.E.2d 1003; People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Finlayson, 76 A.D.2d 670, 431 N.Y.S.2d 839; cert. den. 450 U.S. 931, 101 S.Ct. 1391, 67 L.Ed.2d 364). The officers had an articulable basis for inquiry and acted reasonably under the circumstances; the discovery of the office equipment behind the bush then supplied probable cause for the arrest (see, e.g., People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015; People v. Brnja, 50 N.Y.2d 366, 373-374, 429 N.Y.S.2d 173, 406 N.E.2d 1066; People v. Valentine, 17 N.Y.2d 128, 269 N.Y.S.2d 111, 216 N.E.2d 321; People v. Bittner, 97 A.D.2d 33, 468 N.Y.S.2d 508 [2d Dept., 1983] ).

Similarly, suppression of the defendant's statements was properly denied. The on-the-scene inquiries did not implicate the defendant's Miranda rights (see People v. Huffman, 41 N.Y.2d 29, 390 N.Y.S.2d 843, 359 N.E.2d 353). As in Huffman, the inquiries did not constitute police custodial interrogation (see People v. Johnson, 59 N.Y.2d 1014, 466 N.Y.S.2d 957, 453 N.E.2d 1246; cf....