Matter of Diamond B.

Appellate Division of the Supreme Court of New York

Matter of Diamond B.

131 A.D.3d 879, 17 N.Y.S.3d 390

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 29, 2015

Docket15710

StatusPublished

This text of 131 A.D.3d 879 (Matter of Diamond B.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of Diamond B., 131 A.D.3d 879, 17 N.Y.S.3d 390 (N.Y. Ct. App. 2015).

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Opinion

Order of disposition, Family Court, New York County (Susan R. Larabee, J.), entered on or about January 15, 2014, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that she committed acts that, if committed by an adult, would constitute the crimes of criminal trespass in the second and third degrees and false personation, and placed her with the Office of Children and Family Services for a period of 12 months, unanimously modified, on the law, to the extent of vacating the finding as to criminal trespass in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.

The court properly denied appellant’s motion to suppress her statement to the police, in which she gave a false name, resulting in the false personation charge (Penal Law § 190.23). The police observed appellant, a young teenager, in a stairwell late at night while in the company of an apparent drug addict. Although appellant’s activities were not necessarily indicative of criminality, the record shows that the police officer had an objective, credible reason to make a minimally intrusive inquiry into whether appellant lived in the building. The record also demonstrates that a reasonable person in appellant’s position would not have thought she was in custody when the officer asked her name and date of birth (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). In any event, these pedigree questions did not require Miranda warnings, even though the officer warned appellant, as required by the false personation statute, that providing false information *880 would result in an additional charge (see People v Ligon, 66 AD3d 516 [1st Dept 2009], lv denied 14 NY3d 889 [2010]).

The court’s finding regarding false personation and second-degree criminal trespass was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). However, with regard to third-degree trespass, there was insufficient evidence to support the element of “conspicuously posted rules or regulations governing entry and use” of a housing project (Penal Law § 140.10 [e]; see Matter of James C., 23 AD3d 262 [1st Dept 2005]).

Concur — Friedman, J.P., Andrias, Saxe, Gische and Kapnick, JJ.

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Order of disposition, Family Court, New York County (Susan R. Larabee, J.), entered on or about January 15, 2014, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that she committed acts that, if committed by an adult, would constitute the crimes of criminal trespass in the second and third degrees and false personation, and placed her with the Office of Children and Family Services for a period of 12 months, unanimously modified, on the law, to the extent of vacating the finding as to criminal trespass in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.

The court properly denied appellant’s motion to suppress her statement to the police, in which she gave a false name, resulting in the false personation charge (Penal Law § 190.23). The police observed appellant, a young teenager, in a stairwell late at night while in the company of an apparent drug addict. Although appellant’s activities were not necessarily indicative of criminality, the record shows that the police officer had an objective, credible reason to make a minimally intrusive inquiry into whether appellant lived in the building. The record also demonstrates that a reasonable person in appellant’s position would not have thought she was in custody when the officer asked her name and date of birth (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). In any event, these pedigree questions did not require Miranda warnings, even though the officer warned appellant, as required by the false personation statute, that providing false information *880 would result in an additional charge (see People v Ligon, 66 AD3d 516 [1st Dept 2009], lv denied 14 NY3d 889 [2010]).

The court’s finding regarding false personation and second-degree criminal trespass was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). However, with regard to third-degree trespass, there was insufficient evidence to support the element of “conspicuously posted rules or regulations governing entry and use” of a housing project (Penal Law § 140.10 [e]; see Matter of James C., 23 AD3d 262 [1st Dept 2005]).

Concur — Friedman, J.P., Andrias, Saxe, Gische and Kapnick, JJ.

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131 A.D.3d 879, 17 N.Y.S.3d 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-diamond-b-nyappdiv-2015.

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