People v. Smith

• Decision Date: 20 April 1995
• Parties: The PEOPLE of the State of New York, Respondent, v. Billie G. SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 684

625 N.Y.S.2d 684

214 A.D.2d 845

The PEOPLE of the State of New York, Respondent, v. Billie G. SMITH, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 20, 1995.

Bonnie Burgio, Watertown, for appellant.

Richard V. Manning, Dist. Atty. (Donald S. Thomson, of counsel), Canton, for respondent.

Before CARDONA, P.J., and CREW, WHITE, CASEY and YESAWICH, JJ.

CARDONA, Presiding Justice.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered February 14, 1994, upon a verdict convicting defendant of the crime of arson in the second degree.

On this appeal, defendant initially argues that County Court erred in only imposing the sanction of an adverse inference charge because of the People's failure to produce, in advance of the trial, a fire investigator's handwritten notes concerning the results of his investigation. It is true that, as a general rule, a defendant has the right to review any prior statements of prosecution witnesses under the Rosario rule (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64; see also, People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011). There is, however, no obligation to produce statements that are "duplicative equivalents of statements previously turned over to the defense" (People v. Consolazio, 40 N.Y.2d 446, 454, 387 N.Y.S.2d 62, 354 N.E.2d 801, cert. denied433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100).

Here, the fire investigator testified that the handwritten report was transcribed into typewritten form with the only changes being to correct spelling errors. The defense was provided with a copy of the typewritten report. Although the fire investigator testified that he no longer had the handwritten report, a further search was conducted, the notes were located and given to County Court after the jury had begun its deliberations. A comparison of the handwritten notes and the typewritten report reveals that the two are virtually identical. Under the circumstances, the court's refusal to impose a harsher sanction was not error (see, People v. Aguirre, 201 A.D.2d 485, 607 N.Y.S.2d 398, lv. denied 83 N.Y.2d 868, 613 N.Y.S.2d 129, 635 N.E.2d 298). In addition, because there was no evidence that the initial inability to locate the notes was done in bad faith, defendant was not entitled to a harsher sanction unless he demonstrated some degree of prejudice (see, People v. Holmes, 188 A.D.2d 618, 591 N.Y.S.2d 501, lv. denied 81 N.Y.2d 887, 597 N.Y.S.2d 948, 613 N.E.2d 980). Defendant was not prejudiced insofar as a comparison of the notes with the typewritten report establishes that the former were indeed accurately transcribed onto the latter document which was provided to defendant (see, People v. Thomas, 202 A.D.2d 525, 609 N.Y.S.2d 621, lv. denied 83 N.Y.2d 915, 614 N.Y.S.2d 397, 637 N.E.2d 288). Defense counsel also had a full opportunity to cross-examine the fire investigator about the loss of the notes (see, People v. Holmes, supra ).

Defendant next contends that County Court erred in denying his motion to suppress a statement he made to the police. At issue is whether County Court properly ruled that defendant was not in custody at the time he gave his statement to the police. According to the undisputed testimony of the officer who interviewed defendant, he saw defendant on the street several months after the subject fire and requested that defendant come down to the police station and talk to him; defendant said "sure". Defendant then came to the station on his own. The officer stated that he knew defendant had no place to live and that when defendant told him he had not eaten in a day and a half, the officer ordered food for him. After defendant ate, the two talked about how defendant had no place to stay and at that point the officer asked defendant if he had any other problems, to which defendant responded in the affirmative and said "if the police knew about them, he would probably be in jail". The officer then asked him about the fire and if defendant recalled it, and defendant said "yes". The officer then asked him if there was something that "maybe he might have done that caused the fire", and defendant again answered "yes". The officer then asked defendant if he would give him a voluntary statement and read him his Miranda warnings. The statement was given in a question and answer format and at the completion of the interview defendant was permitted to leave the police station.

In deciding whether a defendant was in custody at the time a statement was given, the test is not what the subjective beliefs of the defendant were, but instead what a reasonable person, innocent of any crime, would have thought if they were in defendant's position (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). The issue of custody raises a question of fact to be determined by County Court and its determination should not be disturbed unless it is erroneous as a matter of law or unsupported by the record (see, People v. Smith, 193 A.D.2d 1054, 598 N.Y.S.2d 620, lv. denied 82 N.Y.2d 853, 606 N.Y.S.2d 605, 627 N.E.2d 527).

Here, in our view, County Court properly refused to suppress defendant's statement on the ground that he was not in custody (see, People v. Vogler, 201 A.D.2d 890, 607 N.Y.S.2d 788, lv. denied 83 N.Y.2d 916, 614 N.Y.S.2d 398, 637 N.E.2d 289). That the questioning takes place in a police station, or that a...