        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

790
KA 09-01205
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHNNY L. ANTHONY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM PIXLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered January 21, 2009. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a weapon in the
second degree and criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, criminal possession of a
weapon in the second degree (Penal Law § 265.03 [3]). Contrary to
defendant’s contention, County Court properly refused to suppress his
statement made to the police despite the fact that he had not yet been
advised of his Miranda rights. The record of the suppression hearing
establishes that a police officer approached defendant in the parking
lot of his place of employment following the officer’s receipt of a
report that defendant possessed a handgun. Defendant denied that he
possessed a weapon and, following a pat-down search of his person (see
CPL 140.50 [1], [3]; People v De Bour, 40 NY2d 210, 223), he consented
to a search of his lunch box and his vehicle. Following the discovery
of the weapon in the vehicle, an officer asked defendant whether he
knew what had been found, to which defendant replied that the weapon
belonged to his brother and that defendant carried it for protection.

     It is axiomatic that “both the elements of police ‘custody’ and
police ‘interrogation’ must be present before law enforcement
officials constitutionally are obligated to provide the procedural
safeguards imposed upon them by Miranda” (People v Huffman, 41 NY2d
29, 33). Although the officer’s question was accusatory rather than
investigatory in nature inasmuch as it was likely to elicit an
incriminating response (see People v Brown, 49 AD3d 1345, 1346), we
nevertheless conclude that the court properly determined that
                                 -2-                           790
                                                         KA 09-01205

defendant was not in custody when he made the incriminating response.
“The standard for assessing a suspect’s custodial status is whether a
reasonable person innocent of any wrongdoing would have believed that
he or she was not free to leave” (People v Paulman, 5 NY3d 122, 129;
see People v Taylor, 82 AD3d 1133). Here, defendant voluntarily
consented to the search of his vehicle and stood, unrestrained, in the
parking lot of his place of employment while the search was conducted
(see generally Taylor, 82 AD3d at 1133-1134). Under these
circumstances, we conclude that the court properly determined that
defendant was not in custody when he made the statement and thus that
the police were not obligated to advise him of his Miranda rights at
that time.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
