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

26
KA 13-00860
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JACOB C. BUCHANAN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joanne M. Winslow, J.), rendered August 28, 2012. The judgment
convicted defendant, upon his plea of guilty, of robbery in the first
degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of robbery in the first degree
(Penal Law § 160.15 [4]). In appeal No. 2, defendant appeals from a
judgment convicting him upon his plea of guilty of burglary in the
second degree (§ 140.25 [2]). In appeal No. 3, defendant appeals from
a judgment convicting him upon his plea of guilty of robbery in the
first degree (§ 160.15 [3]). All of the pleas were entered during one
plea proceeding, following the denial of defendant’s suppression
motion concerning all of the charges. Defendant contends that Supreme
Court erred in denying his suppression motion inasmuch as his
inculpatory statements to the police were involuntarily made and not
attenuated from his unlawful arrest. We reject that contention.

     Indeed, “[t]he choice to speak where speech may incriminate is
constitutionally that of the individual, not the government, and the
government may not effectively eliminate it by any coercive device”
(People v Thomas, 22 NY3d 629, 642). We note, however, that “ ‘[t]he
voluntariness of a confession is to be determined by examining the
totality of the circumstances surrounding the confession’ ” (People v
Peay, 77 AD3d 1309, 1309-1310, lv denied 15 NY3d 955; see Thomas, 22
NY3d at 641-642). Here, an officer who interviewed defendant
testified at the suppression hearing that defendant was not threatened
or promised anything in order for him to waive his Miranda rights, and
                                 -2-                            26
                                                         KA 13-00860

the officer did not promise defendant that, if he cooperated, the
officer would help him gain admission into a Drug Court program. The
court did not credit defendant’s testimony that the officers who
questioned him promised to help him “with the judge and something
about Drug Court,” and we give deference to the court’s resolution of
issues of credibility (see generally People v Prochilo, 41 NY2d 759,
761; People v Williams, 115 AD3d 1344, 1345). In any event, even
crediting defendant’s testimony, we agree with the People that the
statements by the officers were not deceptive or coercive (see People
v Sabines, 121 AD3d 1409, 1411, lv denied 25 NY3d 1171; see generally
Thomas, 22 NY3d at 641-642). We conclude that the People proved
beyond a reasonable doubt that defendant’s statements were not
products of coercion but rather were the “result of a ‘free and
unconstrained choice’ ” by defendant (Thomas, 22 NY3d at 641).

     We agree with the People that, even assuming that defendant was
illegally arrested, “defendant’s statements were sufficiently
attenuated from the illegal arrest to be purged of the taint created
by the illegality” (People v Russell, 269 AD2d 771, 772). “[A]
confession that is made after an arrest without probable cause is not
subject to suppression if the People adequately demonstrate that the
inculpatory admission was ‘attenuated’ from the improper detention; in
other words, it was ‘acquired by means sufficiently distinguishable
from the arrest to be purged of the illegality’ ” (People v Bradford,
15 NY3d 329, 333). In determining whether there has been attenuation,
courts must consider “the temporal proximity of the arrest and the
confession, the presence of intervening circumstances and,
particularly, the purpose and flagrancy of the official misconduct”
(id. at 333 [internal quotation marks omitted]).

     Here, defendant was not interrogated until almost 2½ hours after
his arrest (see id. at 333-334; see also People v Rogers, 52 NY2d 527,
532-534, rearg denied 54 NY2d 753, cert denied 454 US 898, reh
denied 459 US 898). He was given Miranda warnings prior to the
interrogation, which is an “important” attenuation factor (People v
Conyers, 68 NY2d 982, 983). Before defendant was interrogated, a
codefendant implicated defendant in at least one of the crimes, which
constituted a significant intervening event and provided the police
with probable cause (see generally Bradford, 15 NY3d at 333-334;
Russell, 269 AD2d at 772). Finally, there was no evidence of flagrant
misconduct or bad faith on the part of the officers (see Bradford, 15
NY3d at 334).




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
