People v. Dishaw
| Citation | 2006 NY Slip Op 04464,816 N.Y.S.2d 235,30 A.D.3d 689 |
| Decision Date | 08 June 2006 |
| Docket Number | 16323.,16513. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PATTI N. DISHAW, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Defendant was found guilty by a jury of petit larceny based on evidence that she stole lottery tickets from her employer. Following sentencing, she unsuccessfully moved to vacate the judgment pursuant to CPL 440.10 on the ground of "newly discovered evidence," namely, information concerning the activation dates of lottery tickets found in defendant's vehicle on the day of her arrest which defense counsel claimed was Brady material. County Court denied the motion finding that the information did not qualify as newly discovered evidence. Defendant was granted permission to appeal the denial of this motion. We now affirm the judgment and order.
Defendant claims that her oral and written statements to police wherein she admitted that she had stolen lottery tickets from her employer should have been suppressed on the ground that the police engaged in trickery and deception so unfair as to deny her due process and render such statements involuntary. Testimony at the suppression hearing established that, after defendant's employer discovered that lottery tickets were missing from her restaurant, defendant, the night cleaner for the establishment, was interviewed by a State Trooper. At the beginning of the interview, defendant was read her Miranda rights and she indicated that she understood these rights and agreed to speak with him.
Defendant initially denied stealing the lottery tickets. However, she was informed by the Trooper that her act of stealing was caught on a video surveillance camera. She was also led to believe that he had such videotape in his possession. It is undisputed that this was a ruse. Defendant then changed her story and admitted taking several lottery tickets.1 Defendant thereafter signed a written statement in which she admitted that she took $50 worth of lottery tickets four days earlier and that she had been stealing lottery tickets for the past four months (although she was unable to specify how many she took over this time period or the value of same).2
While the Trooper engaged in deception when he told defendant that her actions were caught on video surveillance and even went so far as to place a bogus videotape on the table in front of her, we are unable to conclude that such deception warrants suppression of her subsequent confessions. Deceptive police stratagems in securing a statement "need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession" (People v Tarsia, 50 NY2d 1, 11 [1980] [citations omitted]). Notably, this Court has previously ruled under strikingly similar facts that "falsely telling [a person] that his [or her] actions were memorialized on a video surveillance camera" neither deprived that person of due process nor was likely to induce a false confession (People v Dickson, 260 AD2d 931, 932 [1999], lv denied 93 NY2d 1017 [1999]).
Next, we find no abuse of discretion on the part of County Court in denying defendant's CPL 440.10 motion (see People v Bryce, 88 NY2d 124, 128 [1996]). First, we agree with the court's finding that the subject lottery tickets were readily available for examination by defense counsel...
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