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.
Mazzarelli, J.P., Andrias, Renwick, Freedman, Manzanet-Daniels, JJ.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at suppression hearing; Roger S. Hayes, J. at jury trial and sentencing), rendered December 11, 2009, convicting defendant of criminal possession of a weapon in the third degree and sentencing him, as a second felony offender, to a term of two to four years, affirmed.
Defendant claims that the motion court should have suppressed his self-incriminating response to police questioning because he was not given Miranda warnings. During a traffic stop, police officers ordered the vehicle's five occupants to get out and gather behind the vehicle after the officers observed defendant, who was sitting in the rear, reach into the seat pocket in front of him and manipulate an object. An officer retrieved a gravity knife from the seat pocket and, without first administering Miranda warnings, threatened that unless the knife's owner came forward, he could arrest the entire group. Defendant then admitted that the knife was his.
The court denied defendant's motion to suppress the confession, finding that he "was not yet in custody for Miranda purposes" when he confessed and that questioning the group did not constitute an interrogation. We find that defendant was subjected to a custodial interrogation and accordingly should have received Miranda warnings (see Miranda v Arizona, 384 US 436, 444 ). The standard for determining if a suspect is "in custody" when making a statement is "whether a reasonable person, innocent of any crime, would have felt free to leave" (People v Harris, 48 NY2d 208, 215 ). When he confessed, defendant was one of five people who had first been ordered to get out of their car and stand behind it. An officer approached the group while holding the gravity knife he had recovered and threatened them with the possibility of arrest if the knife's owner did not identify himself. Under these circumstances, no reasonable person would have believed that the police had not restricted his or her freedom of movement and that he or she was free to leave.
The concurrence does not consider the officer's statement as a threat because he said he "could" arrest the group instead of promising that he "would" arrest them, but we do not view this distinction as material. Any reasonable person in defendant's circumstances would have perceived the statement as coercive.
Moreover, the police officer's threat to arrest the entire group if the owner did not come forward was the functional equivalent of interrogation under Miranda, given that the police knew or should have known that the statement "was reasonably likely to elicit an incriminating response" (People v Ferro, 63 NY2d 316, 322 , cert denied 472 US 1007  [quotation marks omitted]; see People v Creary, 61 AD3d 887, 889 ). In Creary, the defendant was a passenger in a car from which the police recovered a gun (61 AD3d at 888). Before the defendant received Miranda warnings, he confessed to an officer that the gun was his after the officer advised him that, unless the police learned who owned the gun, they would charge all the car's occupants with its possession (id. at 888-889). The court ruled that the confession should have been suppressed because the officer's statement amounted to interrogation (id. at 889).
The concurrence views the officer's question to the group as "permissible clarifying inquiry" as opposed to interrogation, but it overlooks that the officer coupled the question with intimidation by threatening arrest. Thus, the questioning was designed not merely to clarify the situation but also to elicit defendant's inculpatory response (see People v Bastian, 294 AD2d 882, 884 , lv denied 98 NY2d 694 ; People v Santarelli, 268 AD2d 603, 604 , lv denied 94 NY2d 952 ; cf. People v Maldonado, 184 AD2d 590, 590 ).
However, reversal is unnecessary since at trial the People presented overwhelming proof of defendant's guilt, including the knife retrieved from the seat pocket defendant had reached into and defendant's recorded admission, during a phone call he made while incarcerated, that he had been arrested because he "had a punk-ass knife in the car." In light of this evidence, the erroneous admission of the defendant's incriminating statement at the scene was harmless error (see People v Crimmins, 36 NY2d 230 ; People v Paulman, 5 NY3d 122, 134 ). All concur except Mazzarelli, J.P. and Andrias, J. who concur in a separate memorandum by Mazzarelli, J.P. as follows: MAZZARELLI, J.P. (concurring)
I agree with the majority that defendant's conviction should be affirmed. However, I disagree that defendant's statement that he owned the gravity knife should have been suppressed. Further, I do not believe that the issue needs to have been reached by the majority.
The police testimony at the suppression hearing can be summarized as follows. On December 27, 2008, at approximately 1:30 A.M., three police officers were in uniform and on routine patrol in their unmarked vehicle in the vicinity of 110th Street in Manhattan. There they observed a car rapidly passing them at about 30-50 miles per hour, changing lanes without signaling, and running through a red light. The officers pulled the car over and, as they approached, an officer observed that three or four people in the vehicle were moving from side to side, reaching, looking at each other and making a lot of hand movements. One of the officers saw defendant, who was sitting in the rear passenger-side seat, reach forward with both hands towards the pocket that was attached to the back side of the car's front seat. Another officer saw defendant placing something in or taking something out of the seat pocket. Fearing for his safety, the officer ordered the occupants out of the car.
After the occupants were removed from the car, defendant was patted down and then the group was told to step to the back of the car. One of the officers pointed his flashlight at the seat pocket in front of where defendant had been sitting and saw a knife. The officer was able to see the knife without touching the pocket, because the pocket was open about three to four inches. After he removed the knife from the car, the officer opened it and concluded that it was a gravity knife. The officer went to the rear of the car and asked the group who owned the knife, telling them that "[u]nless somebody claims responsibility for the knife, you can all be arrested." Defendant then acknowledged that he ...