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

495
KA 12-01361
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EMMANUEL IBARRONDO, DEFENDANT-APPELLANT.


JEANNIE D. MICHALSKI, CONFLICT DEFENDER, AVON, FOR DEFENDANT-
APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered May 22, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the fourth degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Livingston County Court for
further proceedings in accordance with the following memorandum:
Defendant appeals from a judgment convicting him, upon his plea of
guilty, of criminal sale of a controlled substance in the fourth
degree (Penal Law § 224.34 [1]). We agree with defendant that County
Court erred in refusing to suppress his written statement based on the
court’s conclusion that the statement was spontaneously made during
custodial interrogation. The testimony at the suppression hearing
established that defendant was interviewed by an inspector for the New
York State Department of Corrections and Community Supervision as part
of a drug sale investigation. The interview was conducted in Spanish
for defendant’s benefit as a non-English speaking individual. After
waiving his Miranda rights, defendant initially denied having engaged
in any culpable conduct. Once defendant was confronted with evidence
that his fingerprints had been found on several envelopes containing
Suboxone, however, he admitted his involvement, and his admission was
reduced to a written statement. This written statement referenced a
future inclination to speak with a lawyer. Notably, the court did not
address whether defendant knowingly, intelligently and voluntarily
waived his Miranda rights, or whether defendant had invoked his right
to counsel. Instead, the court refused to suppress the written
statement on the ground that a particularly inculpatory reference made
therein was “spontaneous.”

     “Volunteered statements are admissible provided the defendant
spoke with genuine spontaneity ‘and [the statements were] not the
                                 -2-                           495
                                                         KA 12-01361

result of inducement, provocation, encouragement or acquiescence, no
matter how subtly employed’ ” (People v Rivers, 56 NY2d 476, 479,
rearg denied 57 NY2d 775, quoting People v Maerling, 46 NY2d 289, 302-
303). Such statements must be proven to be “spontaneous in the
literal sense of that word as having been made without apparent
external cause, . . . [and] it must at least be shown that they were
in no way the product of an ‘interrogation environment’ ” (People v
Stoesser, 53 NY2d 648, 650). “Rather, [the statement] must satisfy
the test for a blurted out admission, a statement which is in effect
forced upon the officer” (People v Grimaldi, 52 NY2d 611, 617).

     Here, defendant’s statement was provoked or encouraged by the
presentation or discussion of evidence suggestive of his criminal
conduct, and we thus conclude that it cannot be deemed “spontaneous in
the literal sense of that word as having been made without apparent
external cause” (Stoesser, 53 NY2d at 650; see People v Ramos, 27 AD3d
1073, 1074-1075, lv dismissed 6 NY3d 897; People v Newport, 149 AD2d
954, 955-956). “Although there may be other reasons to justify the
denial of defendant’s motion, the only issues that we may consider on
this appeal are those that ‘may have adversely affected the
appellant’ ” (People v Schrock, 99 AD3d 1196, 1197, quoting CPL 470.15
[1]; see People v Concepcion, 17 NY3d 192, 194-195; People v
LaFontaine, 92 NY2d 470, 473-474, rearg denied 93 NY2d 849). We
therefore hold this case, reserve decision, and remit the matter to
County Court to rule upon any other issues raised by the People in
opposition to the motion.




Entered:   May 5, 2017                         Frances E. Cafarell
                                               Clerk of the Court
