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

488
KA 09-01288
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMIE PEREZ, DEFENDANT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA, LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (MARSHALL A. KELLY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered June 4, 2009. The judgment convicted defendant, upon
his plea of guilty, of promoting prison contraband in the first
degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of promoting prison contraband in the first degree
(Penal Law § 205.25 [2]), defendant contends that he was denied due
process based on the delay of 11½ months between the date of the
incident and the date of the indictment. Applying the factors set
forth in People v Taranovich (37 NY2d 442, 445), we reject that
contention (see People v Vernace, 96 NY2d 886, 887-888). “There is no
specific temporal period by which a delay may be evaluated or
considered ‘presumptively prejudicial’ ” (People v Romeo, 12 NY3d 51,
56, cert denied 130 S Ct 63), but a delay of 11½ months alone is
insufficient to require dismissal of the indictment (see People v
Beyah, 302 AD2d 981, lv denied 99 NY2d 626; People v Irvis, 301 AD2d
782, 784, lv denied 99 NY2d 655). The People explained that the delay
was caused by staffing problems in the District Attorney’s Office, and
defendant does not contend that the delay was caused by any bad faith
on the part of the People (see Romeo, 12 NY3d at 56-57). “The charge
against defendant was serious, ‘involv[ing] the safety and security of
a correctional facility . . .’ . . . Moreover, because defendant was
already incarcerated on a prior felony conviction, ‘the delay caused
no further curtailment of his freedom’ . . . Finally, we are unable to
conclude on the record before us that the defense has been impaired by
reason of the delay” (People v Jenkins, 2 AD3d 1390, 1391; see People
v Coggins, 308 AD2d 635, 636; People v Richardson, 298 AD2d 711, 712).
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                                                         KA 09-01288

     Defendant further contends that County Court erred in refusing to
suppress the statement that he made to the correction officer before
that officer conducted a pat frisk. We reject that contention. At
the Huntley hearing, the correction officer testified that, after a
disturbance in the prison yard, he escorted defendant from the yard.
Once inside the corridor of the prison, the correction officer asked
defendant to face the wall “in the pat frisk position.” Before
frisking defendant, the correction officer asked him “if he had
anything on him.” Defendant answered affirmatively, and it is that
answer that defendant contends should have been suppressed.

     The Court of Appeals has clearly stated that “[w]hen . . . the
circumstances of the detention and interrogation of a prison inmate
are no longer analogous to those kinds of detentions found not
custodial in nonprison settings[] but instead entail added constraint
that would lead a prison inmate reasonably to believe that there has
been a restriction on that person’s freedom over and above that of
ordinary confinement in a correctional facility, Miranda warnings are
necessary” (People v Alls, 83 NY2d 94, 100, cert denied 511 US 1090).
Although the correction officer admitted at the hearing that defendant
was restrained to a greater degree than other inmates, that statement
does not establish that defendant was restrained in a manner over and
above that of ordinary confinement in a correctional facility.

     Here, at the time defendant made his incriminating statement, the
detention was the equivalent of a frisk for weapons. “There is a
clear distinction between a stop and frisk inquiry and a forcible
seizure [that] curtails a person’s freedom of action to the degree
associated with a formal arrest” (People v Morales, 65 NY2d 997, 998).
“When a seizure of a person remains at the stop and frisk inquiry
level and does not constitute a restraint on his or her freedom of
movement of the degree associated with a formal arrest, Miranda
warnings need not be given prior to questioning” (People v Bennett, 70
NY2d 891, 894; see Morales, 65 NY2d at 998). Although the Court of
Appeals’ decisions in Bennett and Morales concern situations in
nonprison settings, we conclude that the underlying premise is the
same for prison settings. A stop and frisk would not constitute
custody pursuant to the Miranda rule in the nonprison setting, and we
see no need to afford prison inmates any greater protection in a
prison setting. Thus, “[t]he brief investigatory detention of
defendant did not ‘entail added constraint that would lead a prison
inmate reasonably to believe that there has been a restriction on that
person’s freedom over and above that of ordinary confinement in a
correctional facility’ . . ., and the correction [officer’s] single
question to defendant did not constitute custodial interrogation”
(People v Douglas, 12 AD3d 1174, quoting Alls, 83 NY2d at 100).

     In the cases relied upon by the dissent, the seizures of the
defendants were commensurate with a formal arrest, and the questioning
went beyond routine questioning (see People v Gause, 50 AD3d 1392,
1393-1394; People v Brown, 49 AD3d 1345, 1346; People v Hope, 284 AD2d
560, 561-562).

     In any event, we further conclude that the court properly refused
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                                                         KA 09-01288

to suppress the statement in question based on the public safety
exception to the Miranda rule (see generally New York v Quarles, 467
US 649, 655-657). The correction officer testified at the hearing
that it was his practice to ask inmates whether they “had anything on”
them before any pat frisk so that he would not “get stuck or cut.”
Although the correction officer admitted that he asked the question in
part to obtain information about a possible violation of inmate rules,
the question was “ ‘reasonably prompted by a concern to secure the
safety of the investigating officer[] . . . and was not solely
motivated for the purpose of eliciting testimonial evidence’ ” (People
v Taylor, 302 AD2d 868, 868-869, lv denied 99 NY2d 658 [emphasis
added]).

     We reject defendant’s contention that he was improperly sentenced
as a second felony offender. Contrary to defendant’s contention, the
felony conviction for which he was incarcerated at the time of the
incident at issue qualified as the requisite predicate felony
conviction for second felony offender status (cf. People v Samms, 95
NY2d 52, 55; see generally People v Ross, 7 NY3d 905, 906). Defendant
was not denied effective assistance of counsel based on defense
counsel’s failure to move to vacate the second felony offender
adjudication on that ground (see People v Bell, 259 AD2d 429, lv
denied 93 NY2d 922). “Defendant failed to preserve for our review his
further contention concerning the failure to comply with the
procedural requirements of CPL 400.21 . . . [and, i]n any event, [he]
waived strict compliance with [that statute] by admitting the prior
felony conviction in open court” (People v Vega, 49 AD3d 1185, 1186,
lv denied 10 NY3d 965). The sentence is not unduly harsh or severe.
We have reviewed defendant’s remaining contention and conclude that it
lacks merit.

     All concur except CARNI, J., who dissents and votes to reverse in
accordance with the following Memorandum: I respectfully dissent
inasmuch as I disagree with the conclusion of my colleagues that
defendant was not subject to custodial interrogation when he was
questioned by a correction officer just prior to the discovery of a
weapon in the waistband of defendant’s pants.

     I agree with defendant that reversal is required based on County
Court’s refusal to suppress the statement allegedly made by defendant
to that correction officer. At the Huntley hearing, the correction
officer testified that there was a disturbance in the prison yard and
that he was instructed to escort defendant out of the yard and into a
corridor because another officer had witnessed defendant place
something in his pants. In the corridor, with several other
correction officers present, the officer who had escorted defendant
out of the yard instructed him to face the wall and asked defendant
“if he had anything on him.” Defendant responded that he had a
weapon, and a pat frisk revealed “a pick[-]type weapon” in defendant’s
waistband. The correction officer further testified that defendant
was not free to leave once he was escorted out of the yard and that he
was subjected to greater restraint than that to which other inmates
were subjected. I conclude that, “under those circumstances,
‘defendant could have reasonably believed that his freedom was
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                                                         KA 09-01288

restricted over and above that of ordinary confinement’ ” (People v
Brown, 49 AD3d 1345, 1346; see People v Alls, 83 NY2d 94, 100, cert
denied 511 US 1090; People v Hope, 284 AD2d 560, 562), and thus the
correction officer should have administered Miranda warnings (see
Alls, 83 NY2d at 100).

     I also respectfully disagree with the majority’s determination to
extend the public safety exception to the prison context under the
facts presented here (see People v Gause, 50 AD3d 1392, 1394). The
altercation that gave rise to the isolated custodial detention of
defendant had fully dissipated when multiple correction officers
surrounded defendant and he was escorted by a correction officer into
a corridor in order to be pat frisked. The correction officer
admitted that his question to defendant included an attempt to obtain
information about a possible violation of inmate rules. “[I]t was
likely that the inquiry would elicit evidence of a crime and, indeed,
it did elicit an incriminating response” (Brown, 49 AD3d at 1346).
Thus, I conclude that the public safety exception is inapplicable here
(see Gause, 50 AD3d at 1394).

     Inasmuch as I “cannot say with certainty that the erroneous
suppression ruling played no part in defendant’s decision to plead
guilty,” I conclude that the plea must be vacated (People v Self, 213
AD2d 998, 998; see People v Coles, 62 NY2d 908, 909-910). I would
therefore vacate the plea, grant that part of the omnibus motion
seeking to suppress defendant’s statement to the correction officer
and remit the matter to County Court for further proceedings on the
indictment.




Entered: June 10, 2011                          Patricia L. Morgan
                                                Clerk of the Court
