People v. Smith

• Decision Date: 30 December 1996
• Citation: 234 A.D.2d 946,652 N.Y.S.2d 440
• Parties: PEOPLE of the State of New York, Respondent, v. Robert SMITH, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 440

652 N.Y.S.2d 440

234 A.D.2d 946

PEOPLE of the State of New York, Respondent, v. Robert SMITH, Jr., Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 30, 1996.

Edward J. Nowak by Stephanie Batcheller, Rochester, for Appellant.

Howard R. Relin by Mark Pedersen, Rochester, for Respondent.

Before DENMAN, P.J., and FALLON, WESLEY, BALIO and DAVIS, JJ.

MEMORANDUM.

We reject the contention of defendant that Supreme Court erred in denying his motion to suppress. The court properly concluded that defendant voluntarily accompanied the police to the station and was not thereafter detained without probable cause. The test for whether a person is in custody is an objective one, the relevant inquiry being "what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position" (People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, mot to amend remittitur denied 26 N.Y.2d 845, 309 N.Y.S.2d 593, 258 N.E.2d 90, rearg. denied 26 N.Y.2d 883, 309 N.Y.S.2d 1032, 258 N.E.2d 223, cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89; see, People v. Centano, 76 N.Y.2d 837, 560 N.Y.S.2d 121, 559 N.E.2d 1280). Defendant was not handcuffed at any time, was given food and drink throughout the morning and his initial questioning was investigatory rather than accusatory in nature (see, People v. Centano, supra, at 838, 560 N.Y.S.2d 121, 559 N.E.2d 1280). The questioning did not become accusatory until defendant was positively identified by the victim at 9:30 A.M. that morning. Defendant's brief period of detention prior to that time was not custodial (see, People v. Rivas, 214 A.D.2d 996, 626 N.Y.S.2d 640, lv denied 86 N.Y.2d 801, 632 N.Y.S.2d 514, 656 N.E.2d 613). Therefore, neither the lineup identification nor the physical evidence obtained was the direct or indirect product of an unlawful arrest (cf., Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824).

We further reject the contention of defendant that the delay in arraignment was calculated to deprive him of his right to counsel. Defendant was arrested at 1:00 P.M. and arraigned at 7:00 P.M. The delay of approximately six hours was not unreasonable (cf., People v. Cooper, 101 A.D.2d 1, 475 N.Y.S.2d 660). Prior to arraignment, the police obtained and executed a search warrant and placed defendant in a lineup. The mere acquisition of the search warrant "did not trigger defendant's indelible right to counsel" prior to arraignment (People v. Antinore, 154 A.D.2d 920, 545 N.Y.S.2d 873; see, People v. Avincola, 162 A.D.2d...