People v. Lowndes

• Decision Date: 20 December 2018
• Docket Number: 108850
• Citation: 89 N.Y.S.3d 791,167 A.D.3d 1228
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey D. LOWNDES, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1228

89 N.Y.S.3d 791

The PEOPLE of the State of New York, Respondent,

v.Jeffrey D. LOWNDES, Appellant.

108850

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

Calendar Date: November 14, 2018

Decided and Entered: December 20, 2018

Barrett D. Mack, Albany, for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown (Michele A. Bowen of counsel), for respondent.

Before: Devine, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered September 29, 2016, upon a verdict convicting defendant of the crime of grand larceny in the fourth degree.

In January 2016, defendant was charged by indictment with grand larceny in the fourth degree stemming from an allegation that he stole two spools of electrical wire valued in excess of $1,000 from the Olympic Regional Development Authority (hereinafter ORDA). After a Huntley hearing, County Court denied defendant's motion to suppress his written statement. Following a jury trial, defendant was convicted as charged and sentenced, as a second felony offender, to the maximum sentence of 2 to 4 years. Defendant now appeals, and we affirm.

Initially, County Court properly denied suppression of defendant's written statement. "A statement by a defendant is involuntary and thus inadmissible if it is obtained through ‘undue pressure’ or ‘by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself or herself’ " ( People v. Cruz, 138 A.D.3d 1310, 1311, 30 N.Y.S.3d 370 [2016], quoting CPL 60.45[2][a], [b][i] [brackets omitted] ). The People must prove, beyond a reasonable doubt, the voluntariness of statements given to the police (see People v. Steigler, 152 A.D.3d 1083, 1083, 59 N.Y.S.3d 814 [2017], lv denied 30 N.Y.3d 983, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ; People v. Mattis, 108 A.D.3d 872, 874, 969 N.Y.S.2d 581 [2013], lvs denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ). A confession is not automatically invalidated by the mere making of a promise, and the determination of whether a confession has been coerced depends upon the totality of the circumstances (see People v. Neal, 133 A.D.3d 920, 923, 20 N.Y.S.3d 193 [2015], lvs denied 26 N.Y.3d 1107, 1110, 26 N.Y.S.3d 766, 769, 47 N.E.3d 96, 99[2016]; People v. Bridges, 16 A.D.3d 911, 912, 791 N.Y.S.2d 228 [2005], lv denied 4 N.Y.3d 884, 798 N.Y.S.2d 729, 831 N.E.2d 974 [2005] ). A suppression court's "factual determinations are entitled to great weight and will not be disturbed unless clearly erroneous" ( People v. Vazquez, 145 A.D.3d 1268, 1270, 44 N.Y.S.3d 230 [2016] [internal quotation marks and citation omitted]; see People v. Merritt, 96 A.D.3d 1169, 1170, 946 N.Y.S.2d 306 [2012], lv denied 19 N.Y.3d 1027, 953 N.Y.S.2d 561, 978 N.E.2d 113 [2012] ).

At the Huntley hearing, a state trooper testified that defendant was arrested while he was working at the ORDA facility and was placed in the police car. The trooper testified that he then read defendant his Miranda rights, told him why he was being placed under arrest and told him "not to say anything, think about it, and at the station, if he wants to, he can talk." The trooper testified that, once they arrived at the station, he told defendant that there were several possible charges, at which time defendant denied everything. The trooper then told defendant that, if he cooperated, he could be released on an appearance ticket and, if not, he would be arraigned in front of a judge. Defendant then gave a statement admitting to taking the wire. Defendant was subsequently issued an appearance ticket and was released from custody.

The fact that defendant's statement was preceded by the trooper's indication that, if defendant cooperated, he would be released on an appearance ticket, does not render the circumstances inherently coercive or overbearing (see People v. McLean, 59 A.D.3d 861, 862–863, 875 N.Y.S.2d 283 [2009], affd 15 N.Y.3d 117, 905 N.Y.S.2d 536, 931 N.E.2d 520 [2010] ). Given that the interview, lasting less than an hour, was not particularly long in duration (see People v. Mitchell, 289 A.D.2d 776, 778, 734 N.Y.S.2d 353 [2001], lv denied 98 N.Y.2d 653, 745 N.Y.S.2d 512, 772 N.E.2d 615 [2002] ), and that defendant has extensive experience with the criminal justice system (see People v. Ward, 241 A.D.2d 767, 769, 661 N.Y.S.2d 303 [1997], lv denied 91 N.Y.2d 837, 667 N.Y.S.2d 691, 690 N.E.2d 500 [1997] ), we find, based on the totality of the circumstances, that County Court did not err in denying defendant's motion to suppress his statement (see People v. Cruz, 138 A.D.3d at 1311, 30 N.Y.S.3d 370 ; People v. Neal, 133 A.D.3d at 923, 20 N.Y.S.3d 193 ).

We also find that County Court's Sandoval ruling was proper. The People were permitted to impeach defendant by "asking him whether he ha[d] ever been convicted of a crime and the total number of convictions" but, unless defendant opened the door, no further questioning would be permitted (see generally People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41 [1993] ; People v. Wheeler, 124 A.D.3d 1136, 1139, 2 N.Y.S.3d 663 [2015], lv denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015] ). Despite defendant's claims that his ability to testify was chilled by this ruling, the court properly considered defendant's criminal acts and weighed their probative value against the risk of unfair prejudice (see People v. Portis, 129 A.D.3d 1300, 1303, 12 N.Y.S.3d 328 [2015], lvs denied 26 N.Y.3d 1088, 1091, 23 N.Y.S.3d 644, 648, 44 N.E.3d 942, 946 [2015]; People v. Vasquez, 71 A.D.3d 1179, 1180, 896 N.Y.S.2d 239 [2010], lv denied 14 N.Y.3d 894, ...