Lynn W.L. Fahey, New York, NY (Caitlin Halpern of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Caitlin Halpern of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.), rendered May 4, 2012, convicting him of criminal possession of a weapon in the second degree and unlawful possession of marijuana, upon a jury verdict, and imposing sentence. The appeal brings up for the review the denial, after a hearing (Sullivan, J.), of that branch of the defendant's omnibus motion which was to suppress three statements he made to law enforcement officials.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the conviction of unlawful possession of marijuana, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed, and that branch of the defendant's omnibus motion which was to suppress three statements he made to law enforcement officials is granted.
During the course of a "buy and bust" operation, two police officers in plain clothes observed the defendant walking toward them. Upon making eye contact with one of the officers, the defendant was observed grabbing what appeared to be a pistol grip near his right thigh, and the officers saw what they believed to be the outline of a gun inside the defendant's pants. While still gripping his right thigh, the defendant turned around and ran inside a building and up three flights of stairs, where he was tackled by one of the officers just as he was unlocking the door to the apartment where he lived with his mother. The defendant was immediately handcuffed, and the police subsequently recovered a weapon from the defendant's person, as well as a bag of marijuana from inside the defendant's apartment.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in precluding the defendant from calling his mother and a neighbor to testify at the trial. Based on the defendant's offer of proof, the testimony would have been collateral to the material issues at trial, and would have invited the jury to engage in speculation (see People v.
As the People correctly concede, the hearing court erred in not suppressing the second and third statements made by the defendant, in which he admitted ownership of the weapon and the marijuana, respectively. The defendant made these statements while in custody but before any Miranda warnings were given (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), and the statements were the result of questions posed by the police with the intention of eliciting an incriminating response (see People v. Walker, 129 A.D.3d 1590, 13 N.Y.S.3d 723 ; People v. Soto, 183 A.D.2d 926, 584 N.Y.S.2d 160 ).
In addition, the hearing court also erred in not suppressing the defendant's first statement, in which he admitted that the object in his pants pocket was a gun. At the time one of the officers asked the defendant "What is this?" the evidence before the hearing court showed not only that the defendant had been subdued and was under arrest, but also that the officers had already confirmed that the object the defendant had in his pants pocket was a gun. Thus, contrary to the People's contention, this was not a situation in which the police asked a question in order to clarify the nature of a volatile situation (see People v. Greer, 42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.E.2d 273 ; People v. Huffman, 41 N.Y.2d 29, 390 N.Y.S.2d 843, 359 N.E.2d 353 ; People v. Valentin, 118 A.D.3d 823, 987 N.Y.S.2d 227 ), or attempted to elicit information designed to ensure the officer's safety (see People v. Martinez, 53 A.D.3d 508, 860 N.Y.S.2d 632 ; People v. Maxwell, 22 A.D.3d 314, 804 N.Y.S.2d 290 ; People v. Burgos, 255 A.D.2d 199, 681 N.Y.S.2d 239 ) or public safety (see New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 ; People v. Golden, 147 A.D.3d 780, 47 N.Y.S.3d 67 ; People v. Alicea–Cruz, 31 A.D.3d 779, 818 N.Y.S.2d 461 ; People v. Gucla, 18 A.D.3d 478, 794 N.Y.S.2d 126 ; People v. Melvin, 188 A.D.2d 555, 591 N.Y.S.2d 454 ; People v.
Ingram, 177 A.D.2d 650, 576 N.Y.S.2d 352 ).
Nevertheless, because proof of the defendant's guilt with respect to the conviction of criminal possession of a weapon in the second degree, without reference to the erroneously admitted statements, was overwhelming, and there is no reasonable possibility that the error might have contributed to the defendant's conviction, that conviction should not be reversed (see People v. Alfonso, 142 A.D.3d 1180, 38 N.Y.S.3d 566 ).
We reach a different conclusion with respect to the conviction of unlawful possession of marijuana, as there is a reasonable possibility that the admission of the defendant's third statement, in which he admitted ownership of the marijuana recovered from the apartment, might have contributed to his conviction. However, rather than reversing the conviction and remitting the matter to the Supreme Court, Kings County, for a new trial, we vacate the conviction and the sentence imposed thereon, and dismiss that count of the indictment as a matter of discretion in the interest of justice (see People v. Flynn, 79 N.Y.2d 879, 882, 581 N.Y.S.2d 160, 589 N.E.2d 383 ; People v. Simmons, 32 N.Y.2d 250, 344 N.Y.S.2d 897, 298 N.E.2d 76 ; People v. Chacko, 137 A.D.3d 930, 25 N.Y.S.3d 897 ; People v. Russo, 133 A.D.3d 895, 896, 21 N.Y.S.3d 286 ).