People v. Melvin

• Decision Date: 14 December 1992
• Citation: 591 N.Y.S.2d 454,188 A.D.2d 555
• Parties: The PEOPLE, etc., Respondent, v. Dixon J. MELVIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 454

591 N.Y.S.2d 454

188 A.D.2d 555

The PEOPLE, etc., Respondent, v. Dixon J. MELVIN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 14, 1992.

Verna W. Cobb, Tuxedo, for appellant.

Francis D. Phillips, II, Dist. Atty., Goshen (John Goldsmith, of counsel), for respondent.

Before LAWRENCE, J.P., and MILLER, O'BRIEN and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Orange County (Scarpino, J.), rendered August 11, 1989, convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to the police.

ORDERED that the judgment is affirmed.

The defendant contends that his statement made to the police in response to a police officer's question as to "where the gun was" was inadmissible at the trial since it was made when he was in custody, before receiving Miranda warnings, and that the "public safety exception" should not apply under the facts of this case. He further contends that his statements made at the police precinct were also inadmissible because the police knew or should have known that he had a criminal case pending against him (see, People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371).

In New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550, the Supreme Court carved out a limited exception to the Miranda requirements which is triggered when a danger to public safety appears to be present. At bar, the hearing court properly applied this public safety exception. When Officer MacFarland arrived at the defendant's home, he had to pass numerous people, including children, to get to the front porch. Once on the porch, the officer observed a woman lying in the front doorway with what appeared to be a bullet wound in her chest. The defendant was sitting nearby in a chair on the front porch repeatedly stating, "[s]he made me do it, she wouldn't leave me alone, I had to do it". Officer MacFarland then frisked the defendant and asked him "where the gun was". The defendant responded that he had gotten rid of it and that it would never be found. With the numerous people and children in the immediate area, the question posed to the defendant as to the whereabouts of the gun was more for the purpose of ascertaining for safety reasons the location of the gun, than to secure evidence of a crime (see, People v. Howard, 162 A.D.2d 615, 556 N.Y.S.2d 940). Moreover, when the officer asked the defendant for the location of the gun, there still existed a violatile situation which called for immediate action (cf., Matter of John C., 130 A.D.2d 246, 519 N.Y.S.2d 223; People v. Strickland, 169 A.D.2d 9, 570 N.Y.S.2d 712).

The defendant's claim under People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371, supra is without merit, since Bartolomeo was overruled by the Court of Appeals in People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474, 558 N.E.2d 1011 which is applied retroactively (see, People v. Goodman, 166 A.D.2d 541, 560 N.Y.S.2d 822; People v. Vail, 182...