People v. Rand

• Decision Date: 13 November 1990
• Parties: The PEOPLE, etc., Respondent, v. Andre RAND, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 838

561 N.Y.S.2d 838

167 A.D.2d 433

The PEOPLE, etc., Respondent, v. Andre RAND, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 13, 1990.

Philip L. Weinstein, New York City (Kevin F. Casey, of counsel), for appellant.

William L. Murphy, Dist. Atty., Staten Island (Karen F. McGee and Jonathan J. Silbermann, of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, EIBER and RITTER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Felig, J.), rendered November 15, 1988, convicting him of kidnapping 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 the defendant's omnibus motion which was to suppress statements made by him to the police.

ORDERED that the judgment is affirmed.

On August 4, 1987, the defendant was questioned by two detectives for several hours at various locations on Staten Island and New Jersey. At the conclusion of this questioning, the defendant was arrested. The questioning, none of which took place at a police precinct, had been initiated by the defendant, who sought to establish an alibi by retracing what he claimed were his movements on the day of the victim's disappearance. The defendant had been cooperating with the police investigation for almost a month, and had previously been questioned at the precinct on at least three occasions after which he had been permitted to leave the precinct. Under such circumstances, a reasonable person in the defendant's position, innocent of any crime, would have assumed that he was free to leave the company of the detectives on the day in question. Therefore, any statements that the defendant made were not the product of a custodial interrogation and were properly ruled admissible by the hearing court (see, 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. Day, 150 A.D.2d 595, 541 N.Y.S.2d 463; People v. Arcese, 148 A.D.2d 460, 538 N.Y.S.2d 614; see also People v. Hicks, 68 N.Y.2d 234, 240, 508 N.Y.S.2d 163, 500 N.E.2d 861).

The defendant did not raise, as part of his motion for a trial order of dismissal, the question of whether there was legally sufficient evidence to support a finding that he secreted or held the victim in a place where she could not be found (see, Penal Law § 135.00[2]. Accordingly, this argument is not preserved for appellate review (see, CPL 470.05[2]; People v. Stahl, 53 N.Y.2d 1048, 1050, 442 N.Y.S.2d 488, 425 N.E.2d 876; People v. Udzinski, 146 A.D.2d 245, 249, 541 N.Y.S.2d 9). In any event, viewing the evidence adduced at trial in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt. The record reveals that the defendant restrained the victim with the intent of preventing her liberation by holding her in a wooded area on the grounds of the Staten Island Developmental Center. Additionally, the evidence was legally sufficient to establish that this area constituted a place where the victim was not likely to be...