People v. Gause

• Decision Date: 08 March 2007
• Docket Number: 15143.
• Citation: People v. Gause, 38 AD3d 999, 830 N.Y.S.2d 859, 2007 NY Slip Op 1908 (N.Y. App. Div. 2007)
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LEON GAUSE, Also Known as FLAME, Appellant.

38 A.D.3d 999

830 N.Y.S.2d 859

2007 NY Slip Op 01908

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.LEON GAUSE, Also Known as FLAME, Appellant.

15143.

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

Decided March 8, 2007.

Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered November 21, 2003, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

Rose, J.

Defendant was arrested and interviewed by police in connection with a shooting that seriously wounded one victim and killed another.Although he had been identified by the wounded victim, he was not arraigned until some 13 hours later, after he gave a statement that he had fired the shots in self-defense.Defendant was indicted for murder in the second degree (two counts), attempted murder in the second degree, assault in the first degree, reckless endangerment in the first degree and criminal possession of a weapon in the second and third degrees.His motion to suppress his confession was denied, the case proceeded to trial and, near the end of the second day of deliberations, the jury informed County Court that it had reached a unanimous verdict of guilty on the last two counts of the indictment, but was deadlocked as to the other charges.After consulting with counsel, County Court accepted the partial verdict and instructed the jury to continue deliberations.The jury later acquitted defendant of the remaining charges.

Defendant's motion to suppress his statement as involuntary was properly denied because, contrary to his contention, his arraignment was not unnecessarily delayed in violation of CPL 140.20 (1).Even though the surviving victim promptly identified defendant as the shooter, further investigation was necessary because he initially claimed an alibi that could not readily be verified, and police were attempting to locate and interview additional witnesses (seePeople v Haywood,280 AD2d 282, 282[2001], lv denied97 NY2d 641[2001];People v White,259 AD2d 508, 508[1999], lv denied93 NY2d 981[1999]).In any event, the length of the delay is not the determinative factor, particularly where, as here, defendant was duly advised of his rights and admittedly waived them in his initial interview with police, he was then in continuous custody but not continuously interrogated or threatened, and he was not deprived of food, water or rest (seePeople v Jackson,178 AD2d 851, 852-853[1991], lv denied79 NY2d 1002[1992];People v Benitez,128 AD2d 628, 628[1987];People v Van Buren,115 AD2d 185, 185[1985], lv denied67 NY2d 766[1986]).In short, there is no evidence of coercion here and, inasmuch as this delay was justified, the testimony of one of the investigating officers that he wanted another interview with defendant before arraignment does not establish unnecessary delay (seePeople v Ortlieb,84 NY2d 989, 990[1994];People v Prude,2 AD3d 1318, 1319[2003], lv denied3 NY3d 646[2004];People v White, supra at 508;see alsoPeople v Ramos,99 NY2d 27, 37[2002]).Nor do we find merit in defendant's alternate contention that the 11-hour delay between Miranda warnings and his confession was so excessive as to require a repetition of the warnings (seePeople v Lee,30 AD3d 760, 762[2006], lv denied7 NY3d 850[2006];People v Manley,40 AD2d 907, 907[1972];see alsoPeople v Zappulla,282 AD2d 696, 697-698[2001]).

Defendant also contends that County Court abused its discretion in accepting the partial verdict and then directing the jury to continue deliberations.We note, however, that this issue was not preserved for our...