Appellate Division, First Department
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.
Richard T. Andrias,J.P. Dianne T. Renwick Helen E. Freedman Judith J. Gische, JJ.
Defendant appeals from the judgment of the Supreme Court, New York County (Ruth Pickholz, J. at suppression hearing; Maxwell Wiley, J. at plea and sentencing), rendered June 17, 2009, convicting him of manslaughter in the first degree and criminal possession of a weapon in the third degree, and imposing sentence. Steven Banks, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer and Eleanor J. Ostrow of counsel), for respondent. RENWICK, J.
Prior to pleading guilty, defendant moved to suppress a gun, recovered from his pocket, and videotaped statements he made to the prosecution as fruits of an unlawful seizure. He also moved to suppress the statements as obtained in violation of his Miranda rights. We conclude that the facts disclosed in the record were such as to warrant a person of reasonable caution to believe that defendant was reaching for a weapon when the arresting officer grabbed his arm. We also find that defendant's videotaped statements were not suppressible, notwithstanding the suppression of prior written statements made more than seven hours earlier to police officers, because the videotaped statements were attenuated by a "definite, pronounced break in the interrogation" (People v Chapple, 38 NY2d 112, 115 ). Procedural and Factual Background
The facts developed at the suppression hearing were based upon the testimony of one of the arresting officers, Officer John Facchini, and the testimony of one of the interrogating officers, Detective Conrad Crump. Defendant did not testify or present any other evidence at the suppression hearing.
According to Officer Facchini, on November 27, 2005, at approximately 12:05 a.m., he and his partner were on patrol in the lobby of the Rangel Houses, a public housing project. Facchini heard two gunshots, about four seconds apart, from the direction of another public housing building, the Polo Grounds, which is located about 80-to-100 yards away from the Rangel Houses. About 60 seconds after hearing the shots, Facchini saw "[t]wo males [later identified as defendant and Jeffrey Graves] with hoods and . . . their hands in their pockets" going from the entrance of the Polo Grounds toward the Rangel Houses. Reportedly, defendant and Graves were walking "fast" and "with a purpose," not "calmly."
The officers approached defendant and Graves. No one else was in the area. Facchini spoke with defendant while his partner spoke with Graves. After Facchini identified himself as a police officer, he asked defendant how he was doing. Defendant said, "Good." Facchini asked if he and Graves were "coming from the Polo Grounds"; defendant stated that they were. Facchini asked, "Did you hear the two gunshots?" Defendant answered, "Yes, that's why we are leaving." Facchini asked defendant if they had seen anybody, and defendant stated that they had not. Facchini asked defendant if he "had any ID on him," and defendant said, "Yes." Immediately after asking that question, officer Facchini also asked defendant if he had "any weapons or anything like that on [him,]" and defendant responded, "No."
When Facchini saw that defendant began to place his hand in his back pocket, Facchini reacted by grabbing defendant's arm. Officer Facchini explained that, given that he had recently heard gunshots in the area, he wanted to frisk defendant before allowing him to reach in his pockets. Facchini attempted to pat down defendant's waistband to check for weapons, but before he could do so, defendant used both of his hands to push Facchini away. Facchini then grabbed defendant somewhere on his upper body. Defendant struggled to escape and ran into a fence located about four feet behind them. This caused Facchini to strike the fence too. They fell to the ground, with defendant lying on his stomach and Facchini on top of defendant's back. At that point, Facchini saw the handle of a firearm sticking out of defendant's back pocket. Facchini pulled the gun out of defendant's pocket and placed him in handcuffs. Facchini unloaded the gun, which felt warm, and discovered it had three cartridges and two empty shell casings. Meanwhile, Facchini's partner arrested Graves. Soon thereafter, Facchini learned that a dead body with gunshot wounds had been found near the Polo Grounds.
At approximately 12:45 a.m., Facchini and his partner transported defendant and Graves to the police station. Defendant was placed in Room 219 for interrogation.
Detective Crump, the "lead investigating officer," was the only witness who testified about the interrogation. Crump testified that during the interview, he provided defendant with cigarettes and never threatened or made any promises to him. Crump asked defendant what happened between him and the shooting victim, and why he had the gun. Defendant initially denied knowing anything about the shooting. Instead, he explained that he had found the gun somewhere, picked it up, put it in his pocket, and planned to give it to the ...