People v. Lusk

63 A.D.2d 919, 406 N.Y.S.2d 62, 1978 N.Y. App. Div. LEXIS 11935

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1978
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered May 21, 1976, convicting defendant of attempted assault first degree and criminal possession of a weapon second degree and sentencing him to concurrent indeterminate terms of 5 to 10 years on the first count and three to six years’ imprisonment on the second count is unanimously affirmed. When defendant was first arrested and taken to the precinct he was given the Miranda warnings and he indicated that he understood. Approximately 17 hours later as the arresting officer took defendant to the probation department, he asked defendant where he had gotten the gun. Defendant said that he didn’t like to be pushed around and had gone to get "something” (presumably a weapon). It is this statement, without the benefit of additional Miranda warnings that defendant unsuccessfully sought to suppress, and that result he characterizes as error. Although defendant’s statement may be characterized as involuntary, having been given after the court process had begun and without additional Miranda warnings, it would be harmless error and would have no effect on the outcome of the trial, since defendant was intercepted by the police as he chased three people down the street, firing at them with the weapon in question. In addition, he was identified by one of his targets as having been his assailant. Thus it is inescapable beyond a reasonable doubt that conviction would have been inevitable. (See People v Crimmins, 38 NY2d 407.) Concur—Lupiano, J. P., Birns, Silverman, Evans and Sandler, JJ.