People v. Johnson

• Decision Date: 14 November 2012
• Citation: 100 A.D.3d 777,953 N.Y.S.2d 669,2012 N.Y. Slip Op. 07694
• Parties: The PEOPLE, etc., respondent, v. Raul JOHNSON, appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 777

953 N.Y.S.2d 669

2012 N.Y. Slip Op. 07694

The PEOPLE, etc., respondent,

v.Raul JOHNSON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 14, 2012.

James D. Licata, New City, N.Y. (Lois Cappelletti of counsel), for appellant.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered January 15, 2010, convicting him of attempted murder in the second degree and assault in the first degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant's motion to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

In 2005 the complainant was stabbed in the parking lot of a Shoprite supermarket. In 2007 the defendant was represented by counsel in connection with several burglary charges pending against him. At a meeting with his attorney, the police, and a representative of the Rockland County District Attorney's office, the defendant was offered leniency on the burglary charges in exchange for information on the 2005 stabbing. At that meeting, the defendant told police that a member of his gang had stabbed the complainant.

Six months later, the police arranged another meeting with the defendant in order to equip him with a wire and prepare him to be a confidential informant. Two detectives brought the defendant to the police station for the meeting. The counsel who represented the defendant on the burglary charges and at the proffer agreement meeting was not present. The defendant made incriminating statements to the detectives relating to the stabbing. The detectives then administered Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 444–445, 86 S.Ct. 1602, 16 L.Ed.2d 694), and obtained a written statement from the defendant in which he inculpated himself in connection with the stabbing.

There was sufficient evidence to support the hearing court's conclusion that the defendant was not in custody when he voluntarily accompanied the detectives to the police station ( see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172,cert. denied400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;People v. Verrilli, 69 A.D.3d 963, 895 N.Y.S.2d 439;People v. Pegues, 59 A.D.3d 570, 571, 873 N.Y.S.2d 160;People v. Jordan, 21 A.D.3d 385, 800 N.Y.S.2d 33). Further, the court properly found that the detectives were not barred from questioning the defendant about the stabbing despite the fact that he was represented by counsel on a pending burglary charge, as the two charges were unrelated ( see People v. Cohen, 90 N.Y.2d 632, 640, 665 N.Y.S.2d 30, 687 N.E.2d 1313;People v. Rivera, 277 A.D.2d 470, 716 N.Y.S.2d 704;People v. Gehy, 238 A.D.2d 354, 656 N.Y.S.2d 58;People v. Marin, 215 A.D.2d 267, 627 N.Y.S.2d 16). Accordingly, the hearing court properly allowed the defendant's statements to the police to be admitted into evidence.

Contrary to the defendant's contention, the Supreme Court correctly found that certain notes taken by law enforcement officials in the course of investigating the subject incident did not constitute Rosario material ( see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881), because their contents were not related to the subject matter of the witnesses' testimony at the pretrial suppression hearing ( see People v. Bryant, 209 A.D.2d 630, 619 N.Y.S.2d 127;People v. James, 207 A.D.2d 564, 616 N.Y.S.2d 75).

Viewing the evidence in the light most favorable to the prosecution, we find that the defendant's guilt was established by legally sufficient evidence ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454...