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

411
KA 11-00150
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                OPINION AND ORDER

SCOTT F. DOLL, DEFENDANT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA, LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered July 2, 2010. The judgment convicted defendant,
upon a jury verdict, of murder in the second degree.

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

     Opinion by SMITH, J.: This appeal requires, inter alia, that we
determine whether County Court properly denied defendant’s motion to
suppress statements that he made, including those he made to law
enforcement agents when they questioned him in the absence of Miranda
warnings and after he invoked the right to counsel. Under the unique
circumstances presented, we conclude that the Genesee County Sheriff’s
Deputies (hereafter, deputies) did not violate defendant’s rights by
detaining and questioning him until they discovered the victim’s body.

                                  I

     After a Genesee County grand jury issued an indictment charging
defendant with murder in the second degree (Penal Law § 125.25 [1]
[intentional murder]), he moved, inter alia, to suppress statements he
made to the deputies and others prior to his arrest, as well as
certain tangible evidence. The evidence at the suppression hearing
establishes that, at approximately 8:51 in the evening of February 16,
2009, Genesee County Sheriff’s Deputy James Diehl responded to a 911
telephone call regarding a suspicious person. The caller indicated
that the person was wearing a one-piece camouflage suit and a white
hood, and that he was walking near a certain intersection. Diehl
stopped his patrol vehicle when he observed defendant, who fit the
description, walking a short distance from that intersection. As
defendant approached Diehl’s patrol vehicle, he dropped a metal object
that Diehl later discovered to be a car jack. Diehl nodded toward a
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                                                         KA 11-00150

cylindrical object in defendant’s pocket, and defendant displayed the
object, which was a lug wrench.

     Diehl observed what appeared to be wet blood stains on the knees
and thighs of defendant’s camouflage suit, and on defendant’s sneakers
and hands. At that point, Diehl requested identification, and
defendant complied. When Diehl asked defendant what he was doing,
defendant responded that he was walking in order to lower his
cholesterol because he had a doctor’s appointment the next morning.
Defendant also said that he was going to a friend’s house nearby, that
he had dropped a car off at a local auction house and decided to stop
and walk on the way back home, and that he lived in Corfu. In
addition to the internal inconsistences in defendant’s statements,
Diehl knew that defendant’s description of the location of the
friend’s house was inconsistent with the streets at issue.

     While Diehl was assessing the situation, defendant asked for a
ride back to his van. Diehl agreed and allowed defendant to sit in
the back of the patrol vehicle. Before Diehl began driving, however,
the witness who originally made the 911 telephone call approached
Diehl’s patrol car and told Diehl that he had seen defendant at a
garage at the described intersection. The witness also told Diehl
that defendant first turned away as the witness drove by, and then
crouched down between two cars. Diehl told defendant that he was
going to detain defendant until he could sort out the situation.
Diehl then removed defendant from the patrol vehicle, frisked and
handcuffed him, and returned him to the back seat. Diehl asked
defendant about the blood on his clothing, and defendant replied that
it was cold out so he put on the coveralls that he wore when he
butchered deer.

     Diehl drove to the location where defendant parked his van.
Diehl observed blood in several places on both the inside and outside
of the van, and on the ground next to the van. He also observed a
pair of gloves, which appeared to be blood-soaked, on top of a car
near the van. Other deputies arrived and noticed several additional
blood spots on defendant’s face, and questioned him about the blood.
Defendant initially told Deputy Patrick Reeves that the blood was old,
but Reeves observed that it was fresh. Reeves removed defendant from
the patrol vehicle and showed him the blood on and near the van, and
Reeves also pointed out that defendant’s sneakers were leaving bloody
footprints in the snow. Reeves and other deputies asked defendant
whether the blood was human or deer blood, and indicated that they
would let him go if he could show them the deer. Defendant repeatedly
stated, however, that he could not take the deputies to a deer nor
could he explain the source of the blood. Although defendant invoked
his right to counsel, the deputies thought that there had been an
accident or assault that resulted in injuries, and that “somebody may
be in need.” They therefore continued to ask defendant whether
someone was in need of medical attention, and about the source of the
blood on his clothing and at the scene. Defendant continued to
indicate that he could not answer their questions. The People concede
that the deputies did not administer Miranda warnings to defendant.
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     In addition to questioning defendant about the source of the
blood, the deputies also took steps to locate the possible victim or
victims. Deputies contacted or visited all of defendant’s friends and
relatives whose locations they could ascertain, to check on their
welfare, and the deputies asked police officers in Akron, New York, to
check on defendant’s ex-wife. In addition, deputies contacted the
owner of the business where the van was located, and attempted to
contact others who might have information concerning the situation
confronting them. Deputies walked on both sides of the road between
the location where the van was parked and where defendant was found,
searching for any injured person. When deputies went to the home of
defendant’s business partner, they found his body lying on the ground
in the driveway.

     After the victim’s body was located, defendant’s girlfriend
arrived at the Sheriff’s office with another woman. The other woman
was defendant’s friend, and they had previously worked together as
correctional officers at a state correctional facility. Defendant’s
friend repeatedly asked the deputies if she could speak with
defendant, and eventually Sheriff’s Investigator Kristopher Kautz
agreed to permit her to do so, but told her that any conversation was
not at Kautz’ request. Kautz also indicated that he was going to
remain in the room while defendant spoke with his friend and that,
although Kautz would not take part in their conversation, he would
take notes regarding it. During the ensuing conversation, defendant
told his friend that the situation did not involve an animal, that he
had been “present” but did not do anything, that it was an open and
shut case, that he was going to be in jail somewhere, and that he
guessed that he would get what he deserved. Defendant’s friend
specifically asked defendant to tell her that there was not a dead
body, and defendant replied, “I can’t do that.” Kautz stayed in the
room during the conversation, standing a few feet from defendant and
his friend, within defendant’s view.

     Before finding the victim’s body, deputies took photographs of
defendant and his clothing, obtained a buccal swab from defendant for
DNA testing, and towed his van to a Sheriff’s facility to preserve the
blood evidence. Although the record indicates that the deputies
seized defendant’s clothing, it does not clearly establish whether
that seizure occurred before or after the victim’s body was found.
Pursuant to several search warrants, the deputies later seized the
records from the business of defendant and the victim, bank records
relating to that business, and other evidence.

     Defendant moved, inter alia, to suppress the statements that he
made to the deputies and to his friend, and also sought suppression of
his clothing, the van, the buccal swab, another swab taken from the
blood found on defendant’s face, the evidence seized pursuant to the
warrants, and all other evidence derived from that evidence. After
conducting a hearing, the court suppressed the buccal swab and the
results of any testing performed upon it, but denied the remainder of
defendant’s suppression motion. In an order entered upon defendant’s
consent, the court later directed that defendant provide a sample of
his DNA.
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                                                         KA 11-00150

     At trial, in addition to the evidence adduced at the suppression
hearing, the People introduced evidence establishing that the victim’s
DNA was consistent with the DNA in the blood found on defendant’s
clothing, the van, and the gloves. The DNA in the swab taken from
defendant’s face was consistent with being a mixture of his DNA and
the victim’s DNA. A jury convicted defendant of murder in the second
degree, and he appeals.

                                  II

     Contrary to defendant’s contention, the court properly denied his
motion to suppress the statements that he made to the police and to
his friend while in police custody. Although defendant is correct
that the police continued to question him in the absence of Miranda
warnings and after he requested an attorney, we conclude that the
continued questioning was permitted pursuant to the emergency doctrine
in these circumstances.

     Initially, we reject the contention of the People that defendant
was not in custody and that Miranda warnings therefore were not
required. The evidence establishes that the deputies informed
defendant that he would not be released until they were able to
ascertain the source of the blood. In addition, defendant was frisked
and kept in handcuffs while the deputies attempted to locate the
injured person. A reasonable person under those circumstances would
not have felt free to leave, and thus the court properly concluded
that defendant was in custody for Miranda purposes (see People v
Mejia, 64 AD3d 1144, 1145-1146, lv denied 13 NY3d 861; People v
Rhodes, 49 AD3d 668, 668-669, lv denied 10 NY3d 938; see generally
People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851).

     We agree, however, with the People’s further contention that the
deputies did not violate defendant’s right to counsel or his Miranda
rights under the unique circumstances of this case. The amount of
blood present on defendant’s face, hands, clothing and van, and on the
ground, along with the bloody gloves on top of a nearby car, indicated
that one or more persons had been grievously injured, and that
defendant had been in close contact with that person or persons.
Defendant’s initial explanation, that he had just put on clothing in
which he sometimes butchered deer, was inconsistent with the fresh,
wet blood on his clothing, as well as with the blood on his hands and
face. Defendant added to the suspicious nature of the circumstances
by refusing to show the deputies any deer or deer meat that could be
the source of the blood, and by refusing to answer their questions
concerning whether a person was involved. Based upon the
circumstances confronting the deputies, they were justified in
concluding that one or more persons had been injured and were in need
of assistance or rescue.

     The need to gain information about a possibly injured victim or
victims permitted the deputies to continue questioning defendant,
despite his request for an attorney, under the doctrine that is
variously known as the rescue, emergency, or public safety doctrine.
“Under New York’s emergency exception, police officers can continue to
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                                                         KA 11-00150

question a defendant even after the defendant has requested an
attorney if an individual’s life or safety is at stake” (People v
Kimes, 37 AD3d 1, 16, lv denied 8 NY3d 881, rearg denied 9 NY3d 846).
In a case involving police questioning of a suspect concerning the
whereabouts of a kidnapping victim, the Court of Appeals wrote:

          “It would not be reasonable or realistic to expect
          the police to refrain from pursuing the most
          obvious, and perhaps the only source of
          information by questioning the kidnapper, simply
          because the kidnapper asserted the right to
          counsel after being taken into custody. To hold
          that the special restrictions of the State right
          to counsel rule extend into this area of police
          activity would . . . dangerously limit the power
          of the police to find and possibly rescue the
          victim . . . We therefore hold that the police did
          not violate the defendant’s right to counsel under
          the State Constitution by questioning him
          concerning the victim’s whereabouts” (People v
          Krom, 61 NY2d 187, 200).

Although police officers “do not need ironclad proof of ‘a likely
serious, life-threatening’ injury to invoke the emergency aid
exception” (Michigan v Fisher, ___ US ___, ___, 130 S Ct 546, 549),
such ironclad proof existed here. The deputies possessed specific
information establishing that one or more persons had been injured to
the point where he, she or they had lost a significant amount of
blood. Consequently, the deputies did not violate defendant’s right
to counsel by continuing to question him despite his request for an
attorney.

     We respectfully disagree with the dissent’s conclusion that the
exception does not apply because the deputies lacked knowledge that
there was a victim, such as the kidnapped victim in Kimes (37 AD3d 1).
The deputies did not know the name of the victim or victims, but they
possessed enough information about his/her/their condition to justify
the continued questioning of defendant despite his request for an
attorney. Based on defendant’s responses to their questions regarding
deer, the deputies were justified in concluding that the blood came
from a person rather than from an animal. Therefore, they knew that
there was at least one victim, who had lost a significant amount of
blood. The amount of blood located on defendant’s clothing, sneakers,
face, hands, and the inside and outside of his van, along with the
blood on the snow and the gloves, established the existence of a
victim or victims who had been seriously injured. In addition, the
deputies knew from the blood on defendant that he had been very close
to the victim or victims. Furthermore, his refusal to answer
questions and his patently false statements were evidence that
defendant was withholding essential information and knowledge
concerning the victim’s or victims’ whereabouts. Thus, contrary to
the conclusion of the dissent, the deputies knew that there was a
victim, to wit, at least one person who had been seriously injured and
needed assistance.
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                                                         KA 11-00150

     Similarly, “[g]iven the legitimate concern of the police for the
safety of [any] victim, the questioning of the defendant regarding
[any] victim’s identity and whereabouts, without first advising him of
his Miranda rights . . . , was lawful” (People v Boyd, 3 AD3d 535,
536, lv denied 2 NY3d 737; see People v Molina, 248 AD2d 489, 490, lv
denied 92 NY2d 902). It is well settled that law enforcement agents
may question a suspect without administering Miranda warnings in order
to ensure the safety of people who might, in the future, be injured by
a handgun that the suspect had abandoned in a public place (see New
York v Quarles, 467 US 649, 651; People v Chestnut, 51 NY2d 14, 22-23,
cert denied 449 US 1018; People v Oquendo, 252 AD2d 312, 314-315, lv
denied 93 NY2d 901). In analogizing the exigent circumstances
exception to the Fifth Amendment to the similar exception to the
Fourth Amendment’s protection against unreasonable searches, the
United States Supreme Court wrote that a factual scenario in which a
suspect known to have discarded a handgun shortly before his
apprehension “present[ed] a situation where concern for public safety
must be paramount to adherence to the literal language of the
prophylactic rules enunciated in [Miranda]” (Quarles, 467 US at 653).
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). Given the far more
immediate and heightened concern arising from this situation, in which
the evidence established that one or more persons had sustained severe
injuries, the same rule applies. The deputies, rightfully concerned
that a life might hang in the balance, did not violate defendant’s
rights by continuing to question him without administering Miranda
warnings (see People v Zalevsky, 82 AD3d 1136, 1138).

     Contrary to defendant’s further contention, suppression of his
statements was not required because the deputies who questioned him
were also attempting to obtain evidence in order to convict him of a
crime. “Applicability of the ‘public safety’ exception does not
depend on the officers’ motivations. As long as there is an objective
need to ask the questions in order to protect the public, it does not
matter that the officers may also have desired to obtain incriminating
evidence” (Oquendo, 252 AD2d at 315; see Quarles, 467 US at 655-656).
Here, it is clear that the deputies were pursuing every possible
avenue in their attempts to locate the victim or victims. In addition
to questioning defendant, the deputies went to the homes of his family
and friends, both to seek information and to check on the condition of
those people. As noted, the deputies also searched the roadside near
where defendant was apprehended, and they searched the surrounding
countryside. A deputy contacted the police in the Town of Akron,
where defendant’s ex-wife resided, and asked officers there to check
on her condition, to ensure that she was not the person who had been
injured. Inasmuch as the evidence at the suppression hearing
established that an objective need to rescue a member of the public
existed and that the deputies were doing everything possible to aid
that person or persons, the emergency exception applied
notwithstanding the deputies’ additional intent to obtain
incriminating evidence.
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                                                         KA 11-00150

                                 III

     We also reject defendant’s further contention that the court
erred in refusing to suppress the statements he made to his friend
after the victim’s body was discovered. Defendant is correct that,
“[o]nce the [deputies] found the victim’s body . . . and ascertained
that []he was dead, and after that information was communicated to the
[deputies] questioning the defendant, the emergency no longer existed”
(Zalevsky, 82 AD3d at 1138). With respect to the statements made by
defendant to his friend, however, we conclude that defendant’s right
to counsel was not implicated.

          “Central to the scope of the right of counsel is
          the involvement of the State in eliciting that
          evidence. The right to counsel does not clothe an
          accused with absolute immunity as to all
          incriminating statements made outside the presence
          of a lawyer. While the right to counsel
          guarantees that an accused will have a competent
          advocate in confronting the power of the State,
          that protection does not extend to encounters with
          private citizens absent collusion of the State . .
          . [Thus,] statements induced by nongovernmental
          entities, acting privately, do not fall within the
          ambit of this exclusionary rule” (People v
          Velasquez, 68 NY2d 533, 537).

     Defendant’s contention that his friend was acting on behalf of or
in collusion with law enforcement agents is without merit. In
determining whether a private actor is acting on behalf of or in
collusion with law enforcement agents such as the police officers or
deputy sheriffs involved here, a court must examine numerous factors,
including whether the circumstances establish “a clear connection
between the police and the private investigation . . . ; completion of
the private act at the instigation of the police . . . ; close
supervision of the private conduct by the police . . . ; and a private
act undertaken on behalf of the police to further a police objective”
(People v Ray, 65 NY2d 282, 286). A review of those factors
establishes that, “according to the evidence at the suppression
hearing, defendant’s [friend] was not acting as an agent of the
[deputies], and [his] statements were not otherwise induced by
governmental entities” (People v Carvalho, 60 AD3d 1394, 1395, lv
denied 13 NY3d 742). Consequently, the court properly refused to
suppress those statements (see People v Jean, 13 AD3d 466, 467, lv
denied 5 NY3d 764, 807; People v Ross, 122 AD2d 538, 539, lv denied 68
NY2d 816; cf. People v Grainger, 114 AD2d 285, 289). In any event,
any error in admitting the statements that defendant made to his
friend is harmless because he made similar statements to the deputies,
which we have determined were properly admitted, and, “in light of the
totality of the evidence, there is no reasonable possibility that the
error affected the jury’s verdict” (People v Douglas, 4 NY3d 777, 779;
see People v Lopez, 16 NY3d 375, 386-387).
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                                                         KA 11-00150

                                  IV

     Contrary to defendant’s further contention that he was de facto
arrested without probable cause, we conclude that the deputies’
actions were at all times in compliance with the four-tier analysis
set forth in People v De Bour (40 NY2d 210, 223; see People v Moore, 6
NY3d 496, 498-499; People v Hollman, 79 NY2d 181, 184-185). The
evidence at the suppression hearing establishes that Diehl stopped his
vehicle and defendant walked to the vehicle of his own accord, at
which time the deputy nodded toward the cylindrical object protruding
from defendant’s pocket and asked defendant what he was doing. These
were merely non-threatening questions not indicative of criminality,
and thus were justified as a level one inquiry (see Hollman, 79 NY2d
at 185). The observation of fresh blood stains on defendant’s hands
and clothing gave the deputy a “founded suspicion that criminal
activity [was] afoot” (De Bour, 40 NY2d at 223), which justified a
more pointed inquiry into his activities as a level two intrusion.

     We reject defendant’s contention that his detention in handcuffs
was a de facto arrest requiring probable cause; rather, we conclude
that the detention was a level three intrusion, requiring reasonable
suspicion. “Reasonable suspicion represents that ‘quantum of
knowledge sufficient to induce an ordinarily prudent and cautious
[person] under the circumstances to believe criminal activity is at
hand’ ” (People v Martinez, 80 NY2d 444, 448, quoting People v Cantor,
36 NY2d 106, 112-113). Here, Diehl was informed by a citizen that
defendant had been attempting to conceal himself, and defendant
provided varying and incredible explanations of his conduct in
response to Diehl’s inquiries. Diehl also observed blood on
defendant’s clothing and person, and defendant’s explanation for the
presence of the blood was patently false. Consequently, the deputy
properly concluded that defendant had committed a felony or a
misdemeanor, which provided reasonable suspicion to detain him (see
Moore, 6 NY3d at 498-499). We further reject defendant’s contention
that he was de facto placed under arrest when the deputies seized his
clothing. Although the record does not clearly establish the exact
time of that seizure, the record does establish that it occurred after
he was handcuffed. Therefore, the deputies had reasonable suspicion
that criminal activity was afoot at that time, justifying the level
three continuing temporary detention of defendant while they attempted
to locate the victim or victims.

     Defendant’s contention that the deputies were only permitted to
detain him briefly while they searched the immediate area for a victim
is without merit. An emergency that unquestionably threatened the
life of a victim or victims existed, as discussed above, and defendant
provided the deputies with the best avenue of attempting to provide
assistance to such victim or victims. In this contention, defendant
relies upon his Fourth Amendment rights. The emergency doctrine
provides an exception to those rights when the law enforcement agents
involved are confronted with an immediate need to provide aid or
assistance to a possibly injured individual (see People v Molnar, 288
AD2d 911, 911-912, affd 98 NY2d 328; People v Mitchell, 39 NY2d 173,
177-178, cert denied 426 US 953). Although it is not yet settled
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                                                         KA 11-00150

whether, under the New York State Constitution, the rule in Mitchell
will yield to the rule in Brigham City, Utah v Stuart (547 US 398; see
People v Dallas, 8 NY3d 890, 891), the uncertainty is of no moment
because the facts presented herein qualify as an emergency under
either rule (see People v Desmarat, 38 AD3d 913, 914-915). Thus, we
deem the protection provided by the “Fourth Amendment inapplicable
[because] the exigencies of the situation make the needs of law
enforcement so compelling that the [detention] is objectively
reasonable under the Fourth Amendment” (Quarles, 467 US at 653 n 3
[internal quotation marks omitted]; see Mincey v Arizona, 437 US 385,
393-394).

                                  V

     We reject defendant’s contention that the deputies seized his van
without probable cause to believe that he committed a crime. “ ‘If
the police possess probable cause to believe the vehicle is the
instrumentality of a crime and exigent circumstances exist, they may
seize the [vehicle] without a warrant,’ and both of those factors
exist here” (People v White, 70 AD3d 1316, 1317, lv denied 14 NY3d
845; see People v Sweezey, 215 AD2d 910, 914, lv denied 85 NY2d 980).
The blood on the interior and exterior of the vehicle, by itself,
provided reasonable cause to believe that the van was the
instrumentality of a crime. Furthermore, the fragile nature of the
blood on the exterior of the van, which could be destroyed by mere
rainfall or splashing water from ice and snow that melted, provided
the exigent circumstances.

                                  VI

     “A defendant seeking suppression of evidence has the burden of
establishing standing by demonstrating a legitimate expectation of
privacy in the premises or object searched” (People v Ramirez-
Portoreal, 88 NY2d 99, 108), and defendant failed to establish such an
expectation with respect to the seizure of the vehicles, as well as
the business records of the corporation that he shared with the
victim. We have considered defendant’s remaining contentions with
respect to the basis for the search warrants and the issuance of the
warrants themselves, and conclude that they are without merit.

                                 VII

     Defendant’s contention that the court abused its discretion in
its Molineux and Ventimiglia rulings is without merit. At trial, the
court permitted the People to introduce evidence that defendant had
used a vehicle owned by the victim as security for a loan that was
made to the business. The court also permitted the People to present
evidence establishing that defendant used a vehicle that the business
had sold as security for another loan, and later borrowed that vehicle
from the owner to defraud the lender into believing that the business
still owned the vehicle. “Here, evidence regarding defendant’s prior
[business] activities not only provided necessary background
information and explained the relationship between defendant and the
victim, but also . . . [helped to] establish[ ] defendant’s motive for
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                                                           KA 11-00150

killing the victim” (People v Burnell, 89 AD3d 1118, 1120-1121, lv
denied 18 NY3d 922).

      Defendant made only a general motion for a trial order of
dismissal, and he therefore failed to preserve for our review his
contention that the evidence is legally insufficient to support the
conviction (see People v Gray, 86 NY2d 10, 19; see also People v
Martinez, 73 AD3d 1432, 1432-1433, lv denied 15 NY3d 807).
Furthermore, viewing the evidence in light of the elements of the
crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495).

     Finally, defendant failed to preserve for our review his
contention that the prosecutor’s summation shifted the burden of proof
to the defense and thereby deprived him of a fair trial (see People v
Anzalone, 70 AD3d 1486, 1487, lv denied 14 NY3d 885; see generally
People v Romero, 7 NY3d 911, 912). In any event, that contention
lacks merit inasmuch as the allegedly improper comments by the
prosecutor were fair comment on the evidence (see People v Anderson,
52 AD3d 1320, 1321, lv denied 11 NY3d 733; People v Coleman, 32 AD3d
1239, 1240, lv denied 8 NY3d 844). Furthermore, even assuming,
arguendo, that any of the comments were improper, we conclude that
they did not deprive defendant of a fair trial inasmuch as “the court
clearly and unequivocally instructed the jury that the burden of proof
on all issues [with respect to the crime charged] remained with the
prosecution” (People v Pepe, 259 AD2d 949, 950, lv denied 93 NY2d
1024; see People v Matthews, 27 AD3d 1115, 1116).

                                  VIII

     We have considered defendant’s remaining contentions, and
conclude that they are without merit. Accordingly, we conclude that
the judgment should be affirmed.

     SCUDDER, P.J., and PERADOTTO, J., concur with SMITH, J.; CENTRA, J.,
dissents and votes to reverse in accordance with the following Opinion
in which FAHEY, J., concurs: We respectfully dissent, inasmuch as we
disagree with the majority that the emergency exception applies in
this case. We therefore conclude that the judgment should be
reversed, defendant’s statements that he made to the police should be
suppressed, and a new trial should be granted.

     The evidence at the suppression hearing established that a
sheriff’s deputy approached defendant at around 8:45 p.m. as he was
walking along a road wearing camouflage clothing; defendant matched
the description of a “suspicious” person who had been seen crouching
between parked vehicles. Defendant had blood on his clothing, the
presence of which he explained by stating that he butchers deer.
After the citizen informants identified defendant as the suspicious
person they had seen, the deputy handcuffed defendant and placed him
in the back of the police vehicle. Not satisfied with defendant’s
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                                                         KA 11-00150

answers to his questions, the deputy informed defendant that he was
being detained until the deputy could figure out what happened, and he
was interrogated for the next several hours by several sheriff’s
deputies without Miranda warnings and despite his request for counsel.
At around 1:30 a.m., a body was found and defendant was formally
arrested. Thereafter, defendant’s friend was allowed to speak with
defendant in the presence of the police, and defendant made additional
incriminating statements to her. County Court denied that part of
defendant’s motion seeking to suppress his statements to the police,
concluding that the emergency exception applied to justify the police
interrogation of defendant without counsel or Miranda warnings. The
court further denied that part of defendant’s motion seeking to
suppress his statements to his friend because she was not an agent of
the police.

     In People v Krom (61 NY2d 187, 198-200), the Court of Appeals
established the emergency exception that allows the police to question
a suspect in custody despite the suspect’s request for an attorney.
In that case, the police were searching for a victim who had been
kidnapped and questioned the defendant, the suspected kidnapper (id.
at 192-195). The Court held that it was permissible for the police to
question the defendant in the absence of counsel because they were
attempting to locate the victim (id. at 199-200; see People v Kimes,
37 AD3d 1, 16, lv denied 8 NY3d 881, rearg denied 9 NY3d 846
[permissible to question the defendant even after she requested an
attorney because an “individual’s life or safety (was) at stake”]).
The facts of this case, however, are very different from Krom and do
not warrant the application of the emergency exception. Most
importantly, unlike in Krom, the police in this case were not aware
that there was even a victim who needed police assistance. While we
agree with the majority that the police did not need to know the
victim’s identity (see e.g. People v Boyd, 3 AD3d 535, 536, lv denied
2 NY3d 737), they at least had to know that there was a victim of a
crime. The majority relies on the fact that the defendant had blood
on his clothes to support the inference that there was a victim
somewhere, but defendant explained that the blood on his clothes was
from butchering deer, which is certainly a reasonable explanation. To
allow the police to disregard a person’s invocation of the right to
counsel based on the mere fact that the person has blood on his or her
clothing is an unwarranted expansion of the emergency exception.

     We agree with the majority, however, that defendant’s statements
that he made to his friend in the presence of the police were
admissible. Although those statements were made after the emergency
had ceased, the court properly determined that the friend was not
acting as an agent of the police.

     Accordingly, we would reverse the judgment, grant only that part
of defendant’s motion seeking to suppress his statements to the
police, and grant a new trial. We otherwise concur with the majority
on the remaining issues.
Entered: July 6, 2012                           Frances E. Cafarell
                                                Clerk of the Court
