People v. Johnson

• Decision Date: 09 April 1990
• Citation: 160 A.D.2d 813,554 N.Y.S.2d 261
• Parties: The PEOPLE, etc., Respondent, v. Douglas E. JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 261

554 N.Y.S.2d 261

160 A.D.2d 813

The PEOPLE, etc., Respondent, v. Douglas E. JOHNSON, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 9, 1990.

Pamela R. Goshman, Melville, for appellant.

James M. Catterson, Jr., Dist. Atty., Riverhead (Margaret McPartlin and Ronald E. Lipetz, of counsel), for respondent.

Before BROWN, J.P., and RUBIN, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Seidell, J.), rendered January 22, 1985, convicting him of murder in the second degree (three counts) and rape in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of that defendant's omnibus motion which was to suppress statements made by the defendant to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant made several statements to the police and to a fellow inmate. Because all of these statements were properly received in evidence, we now affirm.

Questions of whether a defendant is within the custody of the police are "to be resolved by the application of the objective standard of whether a reasonable person in the defendant's position, innocent of any crime, would have believed he was free to leave the presence of the police" (People v. Bailey, 140 A.D.2d 356, 358, 527 N.Y.S.2d 845; see also, People v. McIntyre, 138 A.D.2d 634, 526 N.Y.S.2d 217; People v. Oates, 104 A.D.2d 907, 480 N.Y.S.2d 518). "[W]hether a particular interrogation is custodial is largely a question of fact and the hearing court's findings should not be disturbed unless they are against the weight of the evidence" (People v. McIntyre, supra, 138 A.D.2d at 636, 526 N.Y.S.2d 217; see also, People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89; People v. Putland, 105 A.D.2d 199, 482 N.Y.S.2d 882; People v. Oates, supra ).

In this case, the evidence is clear that the defendant was not in custody when he initially made an inculpatory statement to the police. It is also clear that his first statement was voluntary (see, People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188; People v. Peters, 157 A.D.2d 806, 550 N.Y.S.2d 408; People v. Donson, 147 A.D.2d 815, 537 N.Y.S.2d 904; People v. Jackson, 143 A.D.2d 471, 532 N.Y.S.2d 808; People v. Hoyer, 140 A.D.2d 853, 528 N.Y.S.2d 440; People v. Vaughn, 134 A.D.2d 789, 521 N.Y.S.2d 847). Based upon this statement, the police had probable cause to arrest the defendant (see generally, People v. Mercado, 68 N.Y.2d 874, 508 N.Y.S.2d 419, 501 N.E.2d 27 cert. denied 479 U.S. 1095, 107 S.Ct. 1313, 94 L.Ed.2d 166; People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185; People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015). Thus, the defendant's subsequent confessions to the police, which also were voluntary and preceded by Miranda warnings, were not the result of an illegal arrest and were properly received in evidence.

Further, there is no evidence to support the defendant's contention that his statements to the inmate should have been suppressed on the ground that the inmate was acting as an agent for the police. Thus, these statements also were properly received in evidence (see, People v. Blake, 127 A.D.2d 602, 511...