People v. Moore

• Decision Date: 07 June 2018
• Docket Number: 109854
• Citation: 162 A.D.3d 1123,78 N.Y.S.3d 486
• Parties: The PEOPLE of the State of New York, Appellant, v. Ivan MOORE, Respondent.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1123
78 N.Y.S.3d 486

The PEOPLE of the State of New York, Appellant,
v.
Ivan MOORE, Respondent.

109854

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

Decided and Entered: June 7, 2018
Calendar Date: April 27, 2018

78 N.Y.S.3d 487

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for appellant.

Sherri J. Brooks, Alternate Public Defender, Albany (Francisco Calderon of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

Appeal from an order of the County Court of Albany County (Carter, J.), entered August 15, 2017, which granted defendant's motion to suppress evidence.

While the victim was delivering pizza, defendant allegedly stole money from him

78 N.Y.S.3d 488

at gunpoint. After the police determined that defendant's phone number was used to order the pizza, the victim identified defendant from a photo array. A few weeks later, the police stopped defendant outside of his place of employment, explained that he was the subject of an investigation and asked if he would accompany them back to the station to answer questions. Defendant agreed and they transported him to the station. Once there, a detective administered Miranda warnings and defendant engaged in a videotaped interrogation. Defendant was charged with robbery in the second degree and grand larceny in the fourth degree. At his arraignment, the People advised defendant that they intended to offer statements from, and provided him a DVD of, his interrogation. Defendant moved to suppress certain evidence. Following a combined Huntley/Dunaway/Wade hearing, County Court concluded that the police had probable cause to arrest defendant. It denied suppression of the victim's identification of defendant through the photo array, but suppressed defendant's statements, as well as "any information gleaned from [his] phone." The People appeal.

Contrary to defendant's argument, the People's appeal is properly before us. Pursuant to statute, the People may appeal an order granting a suppression motion so long as they certify that the deprivation of the suppressed evidence has rendered their evidence "so weak in its entirety that any reasonable possibility of prosecuting such charge to a conviction has been effectively destroyed" ( CPL 450.50[1] ; see CPL 450.20[8] ). The People are not required to justify or substantiate their evaluation of the remaining evidence, especially considering that, once they make such a certification, they are not permitted to go forward with the prosecution unless they are successful on the appeal (see CPL 450.50[2] ; People v. Kates, 53 N.Y.2d 591, 597, 444 N.Y.S.2d 446, 428 N.E.2d 852 [1981] ).

County Court erred in suppressing evidence derived from defendant's cell phone. If a defendant desires to have certain evidence suppressed, he or she must submit a written motion containing the legal grounds and sworn factual allegations supporting the request (see CPL 710.60[1] ; People v. Mendoza, 82 N.Y.2d 415, 421, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ). Defendant never moved to suppress any evidence that the police obtained from his cell phone. We may not rely on the record from the combined Huntley/Dunaway/Wade hearing to address the merits of a suppression issue that was never the basis of a motion (see People v. Fountaine, 269 A.D.2d 748, 748, 703 N.Y.S.2d 617 [2000], lv denied 94 N.Y.2d 947, 710 N.Y.S.2d 3, 731 N.E.2d 620 [2000] ). Indeed, to do so would be unfair to the People because they were not on notice that the issue would be raised at the hearing and, therefore, did not have an opportunity to present evidence addressing questions that the court raised in its decision. Those topics include when the police took defendant's cell phone, any conversations between the detectives and defendant regarding that alleged seizure, any policy on suspects bringing cell phones into the interview room and whether the police searched the phone before they brought it into the room and obtained defendant's consent (see People v. Giles, 73 N.Y.2d 666, 671, 543 N.Y.S.2d 37, 541 N.E.2d 37 [1989] ). Inasmuch as defendant never moved for suppression of evidence gleaned from his cell phone, and the People were not given fair notice and an opportunity to present proof on the issue, the court should not have suppressed such evidence.

78 N.Y.S.3d 489

County Court erred in suppressing defendant's statements to the police. "The Miranda rule protects the privilege against self-incrimination and, because the privilege applies only when an accused is compelled to testify, the safeguards required by Miranda are not triggered unless a suspect is subject to custodial interrogation" ( People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] [internal quotation marks and citation omitted] ). "The standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" ( id. at 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [citations...