People v. Karadimas

99 A.D.2d 652, 472 N.Y.S.2d 62, 1984 N.Y. App. Div. LEXIS 16902

Opinion

Judgment unanimously reversed, on the law and facts, and a new trial granted. Memorandum: On appeal after a jury conviction for arson, third degree, defendant assigns several errors, two of which require reversal. The first was the erroneous admission of defendant’s first written statement. At the Huntley hearing defendant testified that at about 5:00 a.m. he was followed and confronted by a uniformed police officer who told him that he must go to headquarters, refused to permit him to drive his own car, and transported him in the police car to the Public Safety Building, where his questioning by arson investigators without benefit of Miranda warnings led to his giving the written statement. This testimony, which was unrebutted, establishes that defendant was in custody during the questioning (see, generally, People v Rodney P., 21 NY2d 1; People v Johnson, 91 AD2d 327, 330) and, therefore, the statement should have been suppressed. The second error was the discharge of an absent juror after another juror informed the court during an afternoon session that the juror was absent because her mother was ill. The court made no further inquiry and refused the requests of defense counsel that the trial be recessed until the next morning when a firsthand report from the absent juror would be obtained. Over defense objection the court discharged the juror stating: “In view of the lack of information, we will proceed with the first alternate juror”. Clearly on this record it was not established that the absent juror was “unable to continue serving by reason of illness or other incapacity, or for any other reason * * * unavailable for continued service” (CPL 270.35). We agree that the application for the search warrant was sufficient and the fruits of the search properly admitted. The other points raised on appeal have been examined and present no other ground for reversal. (Appeal from judgment of Monroe County Court, Mark, J. — arson, third degree.) Present — Hancock, Jr., J. P., Doerr, Green, O’Donnell and Moule, JJ.