People v. Green

• Citation: 2021 NY Slip Op 04445
• Decision Date: 16 July 2021
• Docket Number: 433 KA 18-02390
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. COREY GREEN, DEFENDANT-APPELLANT.
• Court: New York Supreme Court

2021 NY Slip Op 04445

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
COREY GREEN, DEFENDANT-APPELLANT.

No. 433 KA 18-02390

Supreme Court of New York, Fourth Department

July 16, 2021

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.

Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered October 2, 2018. The judgment convicted defendant upon a jury verdict of arson in the third degree (four counts).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of four counts of arson in the third degree (Penal Law § 150.10). We reject defendant's contention that Supreme Court erred in refusing to suppress statements that he made during police-monitored conversations with defendant's relatives (informants). Although we agree with defendant that the informants were acting as agents of the police when they spoke with him, the informants" 'did not make a threat that would create a substantial risk that defendant might falsely incriminate himself'" (People v Bradberry, 131 A.D.3d 800, 802 [4th Dept 2015], lv denied 26 N.Y.3d 1086 [2015]; see People v Mitchell, 170 A.D.3d 1522, 1522-1523 [4th Dept 2019], lv denied 33 N.Y.3d 1071 [2019]) and, considering the totality of the circumstances, we agree with the court's further determination that defendant's statements to the informants were voluntarily made (see generally People v Huff, 133 A.D.3d 1223, 1225 [4th Dept 2015], lv denied 27 N.Y.3d 999 [2016]; People v Alexander, 51 A.D.3d 1380, 1381 [4th Dept 2008], lv denied 11 N.Y.3d 733 [2008]).

We also reject defendant's contention that the court erred in refusing to suppress the statements that he made to a police investigator. Contrary to his contention, we agree with the court that no Miranda warnings were necessary before he spoke to the investigator because defendant was not in custody (see People v Baez, 175 A.D.3d 982, 983 [4th Dept 2019], lv denied 34 N.Y.3d 1015 [2019]; People v Leta, 151 A.D.3d 1761, 1762 [4th Dept 2017], lv denied 30 N.Y.3d 981 [2017]). Indeed, the record supports the court's conclusions, including that defendant went home after the interview terminated and that he made the statement at issue spontaneously as he was leaving the police station. With respect to defendant's contention that the statement was involuntary because a police investigator told defendant that the police would be looking for him, we conclude that defendant failed to make the requisite showing that the investigator engaged in "deception [that] 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 Morris, 173 A.D.3d 1797, 1798 [4th Dept 2019], lv denied 34 N.Y.3d 953 [2019] [internal quotation marks omitted]), and we further conclude that the statements to the investigator were voluntarily made (cf. People v Anderson, 42 N.Y.2d 35, 39 [1977]). Defendant failed to preserve for our review his contention that the court should have suppressed those statements as the fruit of an unlawful stop of a vehicle in which he was a passenger (see People v Watkins, 151 A.D.3d 1913, 1913 [4th Dept 2017], lv denied 30 N.Y.3d 984 [2017]; see generally People v Hudson, 158 A.D.3d 1087, 1087 [4th Dept 2018], lv denied 31 N.Y.3d 1117 [2018]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject defendant's contention that the...