People v. Parks

120 A.D.2d 920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1986
• Status: Published

Opinions

— Judgment reversed, on the law, defendant’s motion to suppress granted, and new trial granted. Memorandum: The suppression court erred in failing to suppress two statements defendant made to police officers without the benefit of Miranda warnings. At the Huntley hearing, defendant testified that, as he stood on a street corner, he was approached by a police officer who frisked him and held him by the arm until at least three other officers arrived. He was held on either side by an officer, and one of the officers asked him where he was coming from and how much money he had. Defendant sought suppression of his answers to those questions.

Officer Lloyd, the only prosecution witness at the Huntley hearing, testified that he received a radio report that a cabdriver had been the victim of an armed robbery. He spotted defendant, who closely matched the radioed description of the robber, standing on the corner of Westmoreland and East Fayette. As he exited his police car, a cabdriver flashed the lights of his cab, got out of his cab, pointed to defendant and said, "[tjhat’s the guy”. Lloyd then approached defendant, frisked him and began to question him. He did not recall whether he held defendant as he questioned him, but stated that it was possible. He further stated: "I may have had a hold of him; I may not have at that time”. He did not recall whether another police officer was holding defendant. Officer Lloyd did testify that, in his opinion, defendant was not free to leave, and had defendant tried to leave he would have been restrained.

The suppression court declined to find that defendant had been held during the questioning, but found that, even if defendant had been held, "it is clear that there was no significant attempt to restrain the defendant such as through the use of handcuffs or by drawing a service revolver to prevent his escape”. We disagree, and conclude that the actions of the officers amounted to a significant restraint on defendant’s freedom (see, People v McKay, 29 AD2d 834). The arresting officer admitted that defendant was not free to leave, and under these circumstances we find that a reasonable man, innocent of any crime, who was being restrained and questioned by one or two police officers, would believe he was in custody (see, People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851). Therefore, the statements made by the defendant in response to the officer’s questions without benefit of Miranda warnings should have been suppressed.

We cannot conclude that the introduction of the statements into evidence can be deemed harmless. Defendant testified at trial and introduced several witnesses in an attempt to establish an alibi defense. Defendant’s conflicting statements to the officers at the time of his arrest were introduced in the People’s case-in-chief and were also used in cross-examination to attack defendant’s credibility. On summation, the prosecutor referred to the variance between defendant’s statements at arrest and his trial testimony. On this record, it cannot be said that there was no reasonable possibility that the improperly admitted evidence contributed to defendant’s conviction (see, People v Crimmins, 36 NY2d 230, 237).

We have reviewed defendant’s claims of prosecutorial misconduct. While clear improprieties did occur, the errors were unpreserved and those instances, taken together, did not deprive defendant of his constitutional right to a fair trial (CPL 470.15 [6] [a]; People v Crimmins, 36 NY2d 230, 238, supra). The District Attorney is responsible, however, for insuring that his Trial Assistants avoid tactics that we have repeatedly condemned, such as asking the defendant if a prosecution witness was lying (see, People v Grice, 100 AD2d 419, 421; People v Herlan, 99 AD2d 647).

All concur, except Dillon, P. J., and Callahan, J., who dissent and vote to affirm in the following memorandum by Dillon, P. J.