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

1077
KA 11-01007
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONALD M. MAY, DEFENDANT-APPELLANT.


THOMAS J. EOANNOU, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered May 13, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree, criminal possession of a controlled substance in
the third degree (three counts), criminal possession of a controlled
substance in the fourth degree, criminally using drug paraphernalia in
the second degree (two counts) and criminal possession of a weapon in
the fourth degree.

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

     Memorandum: On appeal 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]), defendant contends that
Supreme Court erred in denying his motion to suppress certain physical
evidence because he was subjected to an unlawful seizure. We reject
that contention. Even assuming, arguendo, that defendant was
unlawfully detained when the police positioned their vehicle
perpendicular to defendant’s vehicle in a parking lot, we conclude
that defendant’s subsequent conduct severed any causal connection
between the unlawful detention and the subsequently-acquired evidence
(see People v Rogers, 52 NY2d 527, 533-534, rearg denied 54 NY2d 753,
cert denied 454 US 898, reh denied 459 US 898; see also People v
Evans, 289 AD2d 994, 994, lv denied 97 NY2d 728).

     After the police officer approached his vehicle, defendant drove
backward over a concrete parking barrier and into the roadway, evaded
a police vehicle stopped across the roadway by maneuvering his vehicle
over the curb of the roadway and onto several lawns, and sped away at
approximately twice the posted speed limit. At the very least,
defendant’s conduct constituted a violation of the misdemeanor of
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                                                         KA 11-01007

reckless driving (Vehicle and Traffic Law § 1212), or reckless
endangerment in the second degree (Penal Law § 120.20). It is well
established that “[a] person who is stopped or detained illegally is
not immunized from prosecution for crimes committed during his [or
her] detention period” (United States v Garcia-Jordan, 860 F2d 159,
160; see Rogers, 52 NY2d at 531-532). Here, inasmuch as defendant’s
response to the police approach was “unjustified and criminal in
nature . . . and unrelated to the initial [allegedly] unlawful action
on the part of the police,” suppression of the subsequently-acquired
evidence was not required (People v Townes, 41 NY2d 97, 102; People v
Ellis, 4 AD3d 877, 878, lv denied 3 NY3d 639, reconsideration denied 3
NY3d 673; cf. People v Felton, 78 NY2d 1063, 1065).

     Contrary to the further contention of defendant, we conclude that
the court did not err in determining, based upon the totality of the
circumstances, that he voluntarily consented to the search of his
residence (see Schneckloth v Bustamonte, 412 US 218, 226; People v
Gonzalez, 39 NY2d 122, 128; People v Hyla, 291 AD2d 928, 929, lv
denied 98 NY2d 652). The fact that defendant was in custody when he
signed the consent to search form does not require suppression of the
evidence seized from his apartment (see People v McCray, 96 AD3d 1480,
1481). Defendant contends that, based upon the time recorded on the
consent to search form, the form was signed before the administration
of Miranda warnings, and thus the record establishes that the consent
to search form was not voluntarily signed. However, “ ‘[t]he
voluntariness of a consent to search is not vitiated, per se, by the
failure to give Miranda warnings to an accused while subject to
custodial interrogation’ ” (id.). In any event, the People presented
evidence at the suppression hearing establishing that the time
recorded on the consent to search form was erroneous and that the
police did not request defendant’s consent to search his apartment
until Miranda warnings had been administered. “It is well settled
that the suppression court’s credibility determinations and choice
between conflicting inferences to be drawn from the proof are granted
deference and will not be disturbed unless unsupported by the record”
(People v Esquerdo, 71 AD3d 1424, 1424, lv denied 14 NY3d 887
[internal quotation marks omitted]) and, here, we see no basis to
disturb the court’s determination that defendant did not sign the
consent form until he had waived his Miranda rights.

     We reject the further contention of defendant that the court
erred in refusing to suppress his statements on the ground that he was
interrogated prior to the administration of Miranda warnings.
Contrary to defendant’s contention, the police officer’s general
statements concerning cooperation were not “ ‘reasonably likely to
elicit an incriminating response’ ” and thus did not constitute
interrogation (People v Brown, 52 AD3d 1175, 1176, lv denied 11 NY3d
923, quoting Rhode Island v Innis, 446 US 291, 301; see People v
Adams, 244 AD2d 897, 898-899, lv denied 91 NY2d 887).

     Finally, we conclude that the court did not abuse its discretion
in denying defendant’s motion to dismiss the indictment in the
interest of justice pursuant to CPL 210.40. “Dismissal of an
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                                                         KA 11-01007

indictment in the interest of justice must be exercised sparingly . .
., that is, only in those rare cases where there is a compelling
factor which clearly demonstrates that prosecution of the indictment
would be an injustice” (People v Quadrozzi, 55 AD3d 93, 103, lv denied
12 NY3d 761 [internal quotation marks omitted]; see People v Hudson,
217 AD2d 53, 55, lv denied 87 NY2d 1020), and this is not “one of
those rare cases in which failure to dismiss [the indictment] would
constitute an injustice” (People v Hirsch, 85 AD2d 902, 902).




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
