                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 30, 2015                     105024
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

THOMAS E. GEORGE,
                    Appellant.
________________________________


Calendar Date:   March 27, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                              __________


     Michael P. Graven, Owego, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Jordan J.
Yorke of counsel), for respondent.

                              __________


Lynch, J.

      Appeal from a judgment of the County Court of Chemung
County (Buckley, J.), rendered February 21, 2012, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the fifth degree.

      Following an uncontested traffic stop of a vehicle in which
defendant was a passenger, defendant was indicted for criminal
possession of a controlled substance in the third degree. After
County Court denied his motion to suppress a statement made
following his arrest, defendant pleaded guilty to the crime of
criminal possession of a controlled substance in the fifth degree
and was sentenced to a prison term of three years with 1½ years
of postrelease supervision.
                              -2-                105024

      On appeal, defendant argues that County Court erred in
failing to suppress his statement and that the physical evidence
obtained during the search of his person at the police station
should have been suppressed. We first observe that defendant's
challenge to County Court's denial of his suppression motion
survives his guilty plea (see CPL 710.70 [2]). During the
suppression hearing, the arresting officer, Christopher Osiecki,
testified that the driver of the vehicle jumped out and began
yelling at the officer and then began to cry. The driver then
informed Osiecki that the two passengers might be involved in
drug activity. With the driver's consent, the vehicle was
searched, but no drugs were found. After defendant consented to
a search of his person, Osiecki found a clear plastic baggie in
defendant's jacket pocket containing a substance that tested
positive for cocaine at the scene. At this point, defendant was
handcuffed, placed under arrest and transported to the police
station in a patrol car by officer Joseph Rudnick. Notably, the
other passenger informed Osiecki and Rudnick that defendant might
have additional drugs in his anal cavity. Rudnick had previously
arrested defendant and knew that defendant and the other
passenger were "close associates."

      The People concede that, by this time, defendant was in
custody and that no Miranda warnings had been given. Rudnick
testified that, during the transport, defendant directed several
profane comments at him upon learning that the field test was
positive. After informing defendant that processing at the
station would include a further search of his person and
inventory of his property, Rudnick continued by stating, "I hope
. . . you don't have anything else – any other narcotics on your
person," to which defendant replied with the statement at issue
on this appeal, "no, I probably do." A strip search ensued at
the station, where it was confirmed that defendant had concealed
a plastic bag in his rectum containing multiple packets of
cocaine. County Court found that defendant removed the bag at
the request of the officer, and that there was no physical
contact between defendant and the officer conducting the search
(compare People v Nicholas, 125 AD3d 1191, 1192 [2015]).

      The admissibility of a statement made by a defendant in
custody depends on whether it was "the product of 'express
                              -3-                105024

questioning or its functional equivalent'" (People v Bryant, 59
NY2d 786, 788 [1983], quoting Rhode Island v Innis, 446 US 291,
300-301 [1980]). The operative question is whether, in context,
"the officer should have known that his statement was 'reasonably
likely to evoke an incriminating response from the suspect'"
(People v Huffman, 61 NY2d 795, 797 [1984], quoting Rhode Island
v Innis, 446 US at 301; see People v Ferro, 63 NY2d 316, 322-323
[1984], cert denied 472 US 1007 [1985]). In our view, County
Court erred in concluding that the inculpatory statement was
admissible because it was simply a spontaneous response to a
declaration by Rudnick. For a statement to be spontaneous, it
must be self-generated without "inducement, provocation,
encouragement or acquiescense, no matter how subtly employed"
(People v Maerling, 46 NY2d 289, 302-303 [1978]; see People v
Rivers, 56 NY2d 476, 479 [1982]). Coming on the heels of
Rudnick's explanation that defendant would be searched as part of
the booking process, and having been informed by the passenger
that defendant may have hidden additional drugs on his person, we
find Rudnick's statement to be the functional equivalent of a
question intended to elicit an incriminating response (see People
v Ferro, 63 NY2d at 323-324; People v Lucas, 53 NY2d 678, 680
[1981], cert denied 474 US 911 [1985]; People v Tavares-Nunez, 87
AD3d 1171, 1173 [2011], lv denied 19 NY3d 1105 [2012]; compare
People v Huffman, 61 NY2d at 797). Since defendant was in
custody and had not been given Miranda warnings, the statement
should have been suppressed as involuntary.

      As a consequence, defendant maintains that the cocaine
seized from his person during the strip search must also be
suppressed. Generally, a pretrial suppression motion must
contain sworn allegations of fact supporting the grounds raised,
except where the motion seeks to suppress an involuntary
statement or identification stemming from an improper procedure
(see CPL 710.60 [1]; People v Huntley, 259 AD2d 843, 844-845
[1999], lv denied 93 NY2d 972 [1999]). In his omnibus motion,
defendant moved for a Huntley hearing to suppress the statement,
but no request was made for a Mapp hearing to suppress the
cocaine seized at the police station. The People consented to a
Huntley hearing, but at the commencement of that hearing the
People informed County Court that defendant had just advised that
he was also seeking a Mapp hearing. In response, County Court
                              -4-                105024

observed that the relevant inquiry involved "a suppression Fourth
Amendment search and seizure issue with some statements/Huntley
issues intertwined." At defendant's request, the hearing
proceeded on that basis.1

      Given that a full Huntley/Mapp hearing was conducted, we
find that the Mapp issue has been preserved for our review
(compare People v Huntley, 259 AD2d at 845). That being said, we
also find that the cocaine was not seized as a direct result of
the suppressed statement (compare People v Paulin, 25 NY2d 445,
450-451 [1969]; People v Ross, 88 AD2d 729, 729 [1982]). Here,
the arresting officer knew that defendant had been involved with
drugs in the past, the vehicle was stopped in an area known for
drug trafficking, the driver's behavior was erratic and he told
the police that the passengers might be involved in illegal drug
activity, defendant was found in possession of cocaine at the
scene that he claimed was crushed aspirin, and the other
passenger indicated that defendant may have concealed drugs in
his rectum. These circumstances provided the police with a
reasonable and articulable factual basis to conduct a strip
search at the station, independent of the suppressed statement
(see People v Hall, 10 NY3d 303, 308-309 [2008], cert denied 555
US 938 [2008]; People v Cogdell, 126 AD3d 1136, ___, 2015 NY Slip
Op 02023, *3 [2015]; People v Kelley, 306 AD2d 699, 700-701
[2003], lv denied 1 NY3d 598 [2004]). Nor does defendant raise
any issue as to the reasonableness of how the search was
conducted. As such, we find no basis to suppress this evidence.
However, given that County Court erred in denying defendant's
motion to suppress the postarrest statement, defendant's judgment
of conviction must be reversed and the matter remitted for
further proceedings (see People v Bradshaw, 76 AD3d 566, 572-573
[2010], affd 18 NY3d 257 [2011]; People v Leonard, 119 AD3d 1237,
1240-1242 [2014, Lynch, J., dissenting]).



    1
        The People reserved the right to submit a posthearing
brief, in which they raised the inadequacy and untimeliness of
the Mapp request. Having found that the challenged statement was
spontaneous and admissible, County Court did not address the
secondary Mapp question.
                              -5-                  105024

     Garry, J.P., Egan Jr. and Clark, JJ., concur.



      ORDERED that the judgment is reversed, on the law, motion
to suppress statement granted, and matter remitted to the County
Court of Chemung County for further proceedings not inconsistent
with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
