People v. Perez

Carni, J.

(dissenting). I respectfully dissent inasmuch as I disagree with the conclusion of my colleagues that defendant was not subject to custodial interrogation when he was questioned by a correction officer just prior to the discovery of a weapon in the waistband of defendant’s pants.

I agree with defendant that reversal is required based on County Court’s refusal to suppress the statement allegedly made by defendant to that correction officer. At the Huntley hearing, the correction officer testified that there was a disturbance in the prison yard and that he was instructed to escort defendant out of the yard and into a corridor because another officer had witnessed defendant place something in his pants. In the corridor, with several other correction officers present, the officer who had escorted defendant out of the yard instructed him to face the wall and asked defendant “if he had anything on him.” Defendant responded that he had a weapon, and a pat frisk revealed “a pick[-]type weapon” in defendant’s waistband. The correction officer further testified that defendant was not free to leave once he was escorted out of the yard and that he was subjected to greater restraint than that to which other inmates were subjected. I conclude that, “under those circumstances, ‘defendant could have reasonably believed that his freedom was restricted over and above that of ordinary confinement’ ” (People v Brown, 49 AD3d 1345, 1346 [2008]; see People v Alls, 83 NY2d 94, 100 [1993], cert denied 511 US 1090 [1994]; People v Hope, *1542284 AD2d 560, 562 [2001]), and thus the correction officer should have administered Miranda warnings (see Alls, 83 NY2d at 100).

I also respectfully disagree with the majority’s determination to extend the public safety exception to the prison context under the facts presented here (see People v Gause, 50 AD3d 1392, 1394 [2008]). The altercation that gave rise to the isolated custodial detention of defendant had fully dissipated when multiple correction officers surrounded defendant and he was escorted by a correction officer into a corridor in order to be pat frisked. The correction officer admitted that his question to defendant included an attempt to obtain information about a possible violation of inmate rules. “[I]t was likely that the inquiry would elicit evidence of a crime and, indeed, it did elicit an incriminating response” (Brown, 49 AD3d at 1346). Thus, I conclude that the public safety exception is inapplicable here (see Gause, 50 AD3d at 1394).

Inasmuch as I “cannot say with certainty that the erroneous suppression ruling played no part in defendant’s decision to plead guilty,” I conclude that the plea must be vacated (People v Self, 213 AD2d 998, 998 [1995]; see People v Coles, 62 NY2d 908, 909-910 [1984]). I would therefore vacate the plea, grant that part of the omnibus motion seeking to suppress defendant’s statement to the correction officer and remit the matter to County Court for further proceedings on the indictment. Present — Scudder, P.J., Fahey, Garni, Sconiers and Martoche, JJ.