NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 9, 2008
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
FLOYD BURTON, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered January 12, 2007, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 31/2 to 7 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Gonzalez, Nardelli, Moskowitz, Renwick, JJ.
The court properly denied defendant's suppression motion. While defendant was in custody and awaiting medical attention at a hospital, an officer engaged him in general conversation on subjects unrelated to the case. This was not the functional equivalent of interrogation (see e.g. People v Man Lee Lo, 118 AD2d 225, 230-231 , lv denied 68 NY2d 814 ), and the surrounding circumstances were not inherently coercive. Defendant ultimately asked the officer two questions about the charges against him. In each instance, the officer's immediate answer was brief, neutral and did not go beyond what was asked (see e.g. People v Rivers, 56 NY2d 476, 480 ; People v Minor, 158 AD2d 412 , lv denied 75 NY2d 968 ; compare People v Lanahan, 55 NY2d 711 ), and each answer led to a spontaneous incriminating statement by defendant that was not the product of interrogation. Finally, defendant's claim that, at the time of these statements, he had invoked his right to remain silent improperly relies on trial testimony (see People v Abrew, 95 NY2d 806, 808 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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