People v. Strickland

• Decision Date: 06 June 1991
• Citation: 169 A.D.2d 9,570 N.Y.S.2d 712
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Norman S. STRICKLAND, Appellant.

Page 712

570 N.Y.S.2d 712

169 A.D.2d 9

The PEOPLE of the State of New York, Respondent, v. Norman S. STRICKLAND, Appellant.

Supreme Court, Appellate Division,

Third Department.

June 6, 1991.

O'Connor, Gacioch & Pope (Kelly E. Fischer), Binghamton, for appellant.

Gerald F. Mollen, Dist. Atty. (Marjorie M. Lyons, of counsel), Binghamton, for respondent.

Before MAHONEY, P.J., and CASEY, MIKOLL, YESAWICH and CREW, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment of the County Court of Broome County (Monserrate, J.), rendered August 10, 1987, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree.

Defendant appeals his conviction for attempted criminal possession of a weapon in the third degree, arguing that County Court improperly denied his motion to suppress certain statements and physical evidence. The transcript of defendant's suppression hearing reveals that, at approximately 7:00 P.M. on March 12, 1987, members of the Sheriff's Department responded to a radio report that a man, later identified as defendant, was wielding a firearm and making threats along U.S. Route 11 in the Town of Barker, Broome County, near the residence of Kenneth Fischer. Sheriff's Department officers arrived at the scene and Deputy Walter Wegrzynski spoke with Fischer, who reported that defendant had approached him, pulled out a sawed-off shotgun from under his jacket, unloaded then reloaded the shotgun and started walking north on Route 11. Fischer was subsequently taken to Highway Patrol Headquarters to give a statement. Approximately one hour later, a record of defendant's criminal history was obtained and, at approximately 9:30 P.M., Wegrzynski telephoned defendant's residence, located defendant and informed him that police officers would be there to question him. A felony complaint was then prepared and Wegrzynski obtained an arrest warrant from Town Court.

At approximately 10:00 P.M., several police officers arrived at defendant's residence to execute the warrant. Defendant, standing outside with a can of beer in one hand and his other hand by his side, was identified by the officers who then placed him under arrest and transported him to Town Court. The police informed defendant at that time that he was under arrest for criminal possession of a weapon, to which defendant responded, "I don't have a weapon." Detective Albert Bomysoad then spoke with defendant's father, who told the officer that defendant had left the house with a shotgun that evening, right after Wegrzynski's telephone call. Defendant's father also told Bomysoad "that [he] could search anyplace that [he] wanted", after which a hunt for the shotgun began. After a brief search, Sergeant Philip Thompson radioed the patrol car in which defendant was being transported to solicit the shotgun's location from defendant. When asked by Wegrzynski where the shotgun was located, defendant replied that "he didn't know anything about it". Sheriff's Deputy Linda Ann Dedek then asked defendant again where the shotgun was located, informing defendant that the officers "are looking for it now [and] we'll be searching all night long until we find it, so just tell us where it is". Defendant acquiesced and replied "[y]es, it is in the mailbox, be careful, it is loaded". It is undisputed that Miranda warnings were not administered to defendant until his arraignment. Defendant's mailbox was located on the other side of Route 11 from defendant's residence and a search thereof resulted in the discovery and seizure of the shotgun. Defendant thereafter admitted to possession of the weapon, stating that he was repairing it for someone and had placed it in the mailbox to be picked up that evening.

Defendant was subsequently charged with two counts of third degree criminal possession of a weapon. Defendant then sought to suppress the introduction into evidence of his statements to the police as well as the sawed-off shotgun. County Court denied the motion after a hearing. Defendant subsequently pleaded guilty to the reduced charge of attempted third degree criminal possession of a weapon for which he was sentenced as a second felony offender to 1 1/2 to 3 years' imprisonment. This appeal followed.

Defendant contends that County Court erroneously applied a "public safety" exception to the Miranda warnings requirement in denying defendant's motion to suppress both his statement in the patrol car and the shotgun itself. The "public safety" exception was first recognized by the United States Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550, wherein the court concluded that Miranda warnings were not required prior to questioning a defendant when the circumstances present a danger to the public safety (see, id., at 656-659, 104 S.Ct. at 2631-33). Quarles involved a defendant chased down in a New York supermarket by a police officer pursuing him on a rape complaint (see, id., at 652, 104 S.Ct. at 2629). The officer, upon discovering that the defendant was wearing an empty shoulder holster, asked him where the gun was. The defendant nodded toward some empty cartons and responded, "the gun is over there" (id.). That statement was excluded at trial along with the gun itself and other subsequent statements because they were all obtained before the defendant was read his Miranda rights. The decision was affirmed by both the Appellate Division and the Court of Appeals. The United States Supreme Court, however, reversed, on certiorari, and remanded, holding that the evidence was erroneously suppressed. The Supreme Court concluded that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination" (id., at 657, 104 S.Ct. at 2632).

An application of the "public safety" exception, whose apparent approbation by the Court of Appeals as a matter of State constitutional law is found in a laconic reference to Quarles in People v. Class, 67 N.Y.2d 431, 433, 503 N.Y.S.2d 313, 494 N.E.2d 444, will "in each case * * * be circumscribed by the exigency which justifies it" (New York v. Quarles, supra, at 658, 104 S.Ct. at 2633). The Quarles court reasoned that "[i]n a kaleidoscopic situation * * * where spontaneity rather than adherence to a police manual is necessarily the order of the day" (id., at 656, 104 S.Ct. at 2631), it is not the subjective motivation of the questioning officer that justifies application of the exception but "the immediate necessity of ascertaining the whereabouts of a [threat to the public safety]" (id., at 657, 104 S.Ct. at 2632). A crucial consideration of the court was that "[i]n such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects * * * might well be deterred from responding" (id.).

Thus, the distinction is drawn by the court "between questions necessary to secure [a police officer's] safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect" (id., at 659, 104 S.Ct. at 2633). The Supreme Court reiterated this distinction in a footnote distinguishing Quarles from a previous case, Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311, in which four hours after a murder the defendant, after vigorous pre-Miranda interrogation, directed officers to where he had hidden a gun (New York v. Quarles, supra, at 659 n. 8, 104 S.Ct. at 2633 n. 8). Recognizing that the Orozco court found that all the statements should be suppressed, the Quarles court pointed out...