People v. Carelli

• Decision Date: 28 June 2007
• Docket Number: 15972.
• Citation: 838 N.Y.S.2d 708,41 A.D.3d 1092,2007 NY Slip Op 05595
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RICHARD A. CARELLI, Appellant.
• Court: New York Supreme Court — Appellate Division

41 A.D.3d 1092

838 N.Y.S.2d 708

2007 NY Slip Op 05595

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RICHARD A. CARELLI, Appellant.

15972.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided June 28, 2007.

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered November 10, 2004, upon a verdict convicting defendant of the crimes of robbery in the third degree and grand larceny in the fourth degree.

Peters, J.

Defendant was indicted on one count of robbery in the second degree and one count of grand larceny in the fourth degree for having forcibly stolen $405 from the victim. According to the victim, he cashed a $405 check at a bank in the City of Hudson, Columbia County, and placed the cash in his shirt pocket. While returning home through an alleyway, he encountered defendant, wearing a blue coat and a knit cap, who asked him for money. The victim, who recognized defendant from a local pizzeria, refused his request. According to the victim, defendant then grabbed him by the neck, knocked him down and pushed a shiny object with a pearl handle and chrome barrel into the corner of his neck, took his money and checkbook and ran down the alley. The victim signed a statement at the police station describing the events, but failed to mention the weapon. Thereafter, he identified an individual thought to be his assailant in a photo array, but it was not defendant.

Thirty days after the robbery, defendant was detained on an unrelated matter. Advised of his Miranda rights by one police officer, he was questioned about the robbery by another. Although he refused to sign a written statement or provide a recorded statement, he admitted to following the victim, asking him for money and taking $200 from his shirt pocket. However, he denied that he had a gun or that he forcibly took the money from the victim.

At pretrial hearings, County Court determined that defendant's statements were voluntary and should be admitted. The People stipulated to the suppression of all identification procedures. After a jury trial, defendant was found not guilty of robbery in the second degree, but guilty of the lesser included offense of robbery in the third degree and the charged crime of grand larceny in the fourth degree. He was sentenced to concurrent prison terms of 2 1/3 to 7 years for the third degree robbery conviction and 1 1/3 to 4 years for the fourth degree grand larceny conviction. He appeals and we affirm.

Defendant contends that his confession should have been suppressed because he was under the influence of drugs at the time that he waived his rights and because it was made to a second police officer who did not provide him with his Miranda warnings. Viewing the totality of the circumstances and deferring to County Court's credibility determinations, we find no error (see People v Adams, 31 AD3d 1063, 1065 [2006], lv denied 7 NY3d 845 [2006]). When a defendant is in continuous custody and not subjected to coercive tactics, delays between the provision of Miranda warnings and later questioning will not necessarily make a defendant's statements involuntary unless the delay is excessive (see ...