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

510
KA 12-00100
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENNEDY D. WALKER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered November 9, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, that part of
defendant’s omnibus motion seeking to suppress his statements to the
police is granted in its entirety, and the matter is remitted to
Monroe County Court for further proceedings.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that County Court erred
in denying that part of his omnibus motion seeking to suppress the
statements that he made to the police after he received Miranda
warnings. The testimony at the suppression hearing established that
two police officers discovered defendant and a companion smoking
marijuana in a parked vehicle. After exiting the vehicle at the
request of the police, defendant consented to a search of the vehicle.
The first officer discovered a gun in the glove box, handcuffed
defendant, and proceeded to secure the gun. While escorting defendant
toward a police car, the second officer asked defendant who owned the
gun, and defendant responded by inculpating himself. Defendant sat in
the back of the police car for less than 10 minutes before the first
officer entered the car, provided Miranda warnings, and obtained a
statement that was reduced to writing in which defendant again claimed
ownership of the gun.

     We conclude that the court properly granted that part of
defendant’s motion seeking to suppress his pre-Miranda statements, but
erred in denying that part of the motion seeking to suppress the post-
                                 -2-                           510
                                                         KA 12-00100

Miranda statements. It is undisputed that defendant was in custody
when he was handcuffed by the first officer and then escorted by the
second officer to be placed in the police car (see People v Evans, 294
AD2d 918, 919, lv dismissed 98 NY2d 768; People v Sanchez, 280 AD2d
891, 891, lv denied 96 NY2d 806; see generally People v Yukl, 25 NY2d
585, 589, cert denied 400 US 851), and that defendant was subjected to
pre-Miranda interrogation because his initial admission was made in
response to a question by the second officer regarding ownership of
the gun that was “ ‘reasonably likely to elicit an incriminating
response’ ” (People v Brown, 52 AD3d 1175, 1176, lv denied 11 NY3d
923, quoting Rhode Island v Innis, 446 US 291, 301; see People v
Flowers, 59 AD3d 1141, 1143; see generally People v Ferro, 63 NY2d
316, 321, cert denied 472 US 1007). “When, as part of a continuous
chain of events, a defendant is subjected to custodial interrogation
without Miranda warnings, any statements made in response as well as
any additional statements made after the warnings are administered and
questioning resumes must be suppressed” (People v Moyer, 292 AD2d 793,
795 [internal quotation marks omitted]; see People v Paulman, 5 NY3d
122, 130-131; People v Bethea, 67 NY2d 364, 367-368; People v Chapple,
38 NY2d 112, 114-115). Where, however, “there is such a definite,
pronounced break in the interrogation that the defendant may be said
to have returned, in effect, to the status of one who is not under the
influence of questioning,” his or her statements in response to
renewed questioning after he or she has received Miranda warnings and
waived his or her constitutional rights may be admitted (Chapple, 38
NY2d at 115; see Moyer, 292 AD2d at 795). Here, the initial
questioning by the second officer, although brief, produced an
inculpatory statement directly related to the instant crime (cf.
People v White, 10 NY3d 286, 291-292, cert denied 555 US 897; People v
Smith, 275 AD2d 951, 952, lv denied 96 NY2d 739), and the second
interrogation, which produced another inculpatory statement, occurred
less than 10 minutes later and in the same location (see Moyer, 292
AD2d at 795). Moreover, contrary to the People’s contention, the
record does not establish that “a reasonable suspect in defendant’s
position would have perceived a marked change in the tenor of his
engagement with [the] police” (Paulman, 5 NY3d at 131; see Bethea, 67
NY2d at 367-368). We thus conclude that “it cannot be said that there
was ‘such a definite, pronounced break’ in the interrogation that
defendant was returned to the position of one who was not under the
influence of the initial improper questioning” (Moyer, 292 AD2d at
795, quoting Chapple, 38 NY2d at 115; see Evans, 294 AD2d at 919).




Entered:   June 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
