Opinion
667 KA 12-02260
06-19-2015
The PEOPLE of the State of New York, Respondent, v. Troy ROSE, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him following a nonjury trial of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ). We conclude that County Court properly refused to suppress defendant's statement to the arresting officers, which was made without Miranda warnings. The officers' question concerning the location of the gun did not constitute interrogation (see People v. Chestnut, 51 N.Y.2d 14, 22–23, 431 N.Y.S.2d 485, 409 N.E.2d 958, cert. denied 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479 ; People v. Roseboro, 124 A.D.3d 1374, 1375, 1 N.Y.S.3d 684 ) and moreover, the public safety exception to the Miranda rule applied to that question (see People v. Gucla, 18 A.D.3d 478, 479, 794 N.Y.S.2d 126, lv. denied
5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 ).
We further conclude that the court properly refused to suppress the gun seized from defendant's backpack during a search incident to defendant's lawful arrest (see People v. Smith, 59 N.Y.2d 454, 458–459, 465 N.Y.S.2d 896, 452 N.E.2d 1224 ; People v. Johnson, 86 A.D.2d 165, 166–167, 449 N.Y.S.2d 41, affd. 59 N.Y.2d 1014, 466 N.Y.S.2d 957, 453 N.E.2d 1246 ). Here, “the circumstances leading to the arrest support a reasonable belief that the suspect may [have been able to] gain possession of a weapon” (People v. Gokey, 60 N.Y.2d 309, 311, 469 N.Y.S.2d 618, 457 N.E.2d 723 ; see People v. Capellan, 38 A.D.3d 393, 394, 833 N.Y.S.2d 20, lv. denied 9 N.Y.3d 873, 842 N.Y.S.2d 785, 874 N.E.2d 752 ; see generally People v. Wylie, 244 A.D.2d 247, 250–251, 666 N.Y.S.2d 1, lv. denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895 ), including defendant's statement that the gun was in his backpack (see People v. Alvarado, 126 A.D.3d 803, 804–805, 5 N.Y.S.3d 271 ).
Contrary to defendant's contention, the court properly curtailed his cross-examination of one of the officers at the suppression hearing with respect to a confidential informant. Defendant was arrested pursuant to a warrant, and the existence or reliability of a confidential informant who allegedly provided information concerning defendant's location “had nothing to do with the legality of the [arrest or] search and it was, therefore, irrelevant” (People v. Lourdes, 175 A.D.2d 958, 958, 573 N.Y.S.2d 537 ; see People v. Alfone, 206 A.D.2d 775, 776, 615 N.Y.S.2d 110, lv. denied 84 N.Y.2d 1028, 623 N.Y.S.2d 184, 647 N.E.2d 456 ). Inasmuch as a motion to reopen the suppression hearing would not have been successful, defendant was not denied effective assistance of counsel based upon counsel's failure to make such a motion (see People v. Crespo, 117 A.D.3d 1538, 1539, 985 N.Y.S.2d 378, lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 23 N.Y.3d 1035 ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.