Calendar Date: April 27, 2018Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.__________P. David Soares, District Attorney, Albany (Vincent Starkof counsel), for appellant.Sherri J. Brooks, Alternate Public Defender, Albany(Francisco Calderon of counsel), for respondent.__________McCarthy, J.P.Appeal from an order of the County Court of Albany County(Carter, J.), entered August 15, 2017, which granted defendant’smotion to suppress evidence.While the victim was delivering pizza, defendant allegedlystole money from him at gunpoint. After the police determinedthat defendant’s phone number was used to order the pizza, thevictim identified defendant from a photo array. A few weekslater, the police stopped defendant outside of his place ofemployment, explained that he was the subject of an investigationand asked if he would accompany them back to the station toanswer questions. Defendant agreed and they transported him tothe station. Once there, a detective administered Mirandawarnings and defendant engaged in a videotaped interrogation.Defendant was charged with robbery in the second degree and grandlarceny in the fourth degree. At his arraignment, the Peopleadvised defendant that they intended to offer statements from,and provided him a DVD of, his interrogation. Defendant moved tosuppress certain evidence. Following a combined Huntley/Dunaway/Wade hearing, County Court concluded that the police had probablecause to arrest defendant. It denied suppression of the victim’sidentification of defendant through the photo array, butsuppressed defendant’s statements, as well as “any informationgleaned from [his] phone.” The People appeal.Contrary to defendant’s argument, the People’s appeal isproperly before us. Pursuant to statute, the People may appealan order granting a suppression motion so long as they certifythat the deprivation of the suppressed evidence has renderedtheir evidence “so weak in its entirety that any reasonablepossibility of prosecuting such charge to a conviction has beeneffectively destroyed” (CPL 450.50 [1]; see CPL 450.20 [8]). ThePeople are not required to justify or substantiate theirevaluation of the remaining evidence, especially consideringthat, once they make such a certification, they are not permittedto go forward with the prosecution unless they are successful onthe appeal (see CPL 450.50 [2]; People v Kates, 53 NY2d 591, 597[1981]).County Court erred in suppressing evidence derived fromdefendant’s cell phone. If a defendant desires to have certainevidence suppressed, he or she must submit a written motioncontaining the legal grounds and sworn factual allegationssupporting the request (see CPL 710.60 [1]; People v Mendoza, 82NY2d 415, 421 [1993]). Defendant never moved to suppress anyevidence that the police obtained from his cell phone. We maynot rely on the record from the combined Huntley/Dunaway/Wadehearing to address the merits of a suppression issue that wasnever the basis of a motion (see People v Fountaine, 269 AD2d748, 748 [2000], lv denied 94 NY2d 947 [2000]). Indeed, to do sowould be unfair to the People because they were not on noticethat the issue would be raised at the hearing and, therefore, didnot have an opportunity to present evidence addressing questionsthat the court raised in its decision. Those topics include whenthe police took defendant’s cell phone, any conversations betweenthe detectives and defendant regarding that alleged seizure, anypolicy on suspects bringing cell phones into the interview roomand whether the police searched the phone before they brought itinto the room and obtained defendant’s consent (see People vGiles, 73 NY2d 666, 671 [1989]). Inasmuch as defendant nevermoved for suppression of evidence gleaned from his cell phone,and the People were not given fair notice and an opportunity topresent proof on the issue, the court should not have suppressedsuch evidence.County Court erred in suppressing defendant’s statements tothe police. “The Miranda rule protects the privilege againstself-incrimination and, because the privilege applies only whenan accused is compelled to testify, the safeguards required byMiranda are not triggered unless a suspect is subject tocustodial interrogation” (People v Paulman, 5 NY3d 122, 129[2005] [internal quotation marks and citation omitted]). “Thestandard for assessing a suspect’s custodial status is whether areasonable person innocent of any wrongdoing would have believedthat he or she was not free to leave” (id. at 129 [citationsomitted]; see People v Yukl, 25 NY2d 585, 589 [1969], cert denied400 US 851 [1970]; People v Planty, 155 AD3d 1130, 1133 [2017],lv denied 30 NY3d 1118 [2018]). A court evaluating whether anindividual was in custody must assess “the circumstances existingwhen the challenged statements were made, considering suchfactors as the location, length and atmosphere of thequestioning, whether police significantly restricted defendant’sfreedom of action, the degree of defendant’s cooperation, andwhether the questioning was accusatory or investigatory” (Peoplev Henry, 114 AD3d 1025, 1026 [2014] [internal quotation marks andcitation omitted], lv dismissed 22 NY3d 1199 [2014]; see People vPlanty, 155 AD3d at 1133). The People bear the burden ofproving, beyond a reasonable doubt, that a defendant’s statementsto police were voluntary (see People v Guilford, 21 NY3d 205, 208[2013]; People v Robinson, 156 AD3d 1123, 1130 [2017], lv denied30 NY3d 1119 [2018]).After a Miranda warning is administered, the voluntarinessof a statement is determined by examining the totality of thecircumstances under which it was obtained (see People v Robinson,156 AD3d at 1130; People v Steigler, 152 AD3d 1083, 1083 [2017],lv denied 30 NY3d 983 [2017]). Where “Miranda warnings have beentimely given . . . the requisite inference of voluntariness maybe relatively easily drawn” (People v Guilford, 21 NY3d at 208).“Factual determinations of the suppression court are entitled togreat weight and will not be overturned unless clearly contraryto the evidence” (People v Muniz, 12 AD3d 937, 938 [2004][citations omitted]; accord People v Weishaupt, 118 AD3d 1100,1102 [2014]).Here, the detectives approached defendant outside his placeof employment and asked him to accompany them to the policestation. Defendant voluntarily agreed and they drove him to thestation without placing him in handcuffs. The videotapedstatement indicates that, during the ride and before entering theinterview room, they engaged in general conversation regardingdefendant’s background, education, employment and family life,but did not discuss the criminal investigation. Inside theinterview room, defendant was initially not restrained. Thedetectives asked if he would like water and provided him a drink.Later, they obtained a cigarette and allowed him to smoke it, andpermitted him to make a phone call. At the beginning of theconversation in the interview room, a detective administeredMiranda warnings and defendant stated that he was willing to talkto them and answer questions. Defendant was not threatened orcoerced during the interview.County Court did not rely on these facts, but insteadfocused on what it deemed “the troubling and unavoidable issuethat, prior to entering the interview room and prior to Mirandawarnings, . . . defendant’s phone had already been seized by thepolice.” The court highlighted the People’s failure at thehearing to address this seizure of the phone even though, asdiscussed above, the People were not on notice that anythingrelated to the phone was being challenged by defendant. Thecourt chastised the People for failing to acknowledge or explain“the circumstances under which . . . defendant’s phone was seizedand potentially searched, pre-Miranda.” The record contains nofactual support for, and actually belies, the court’s speculativeassertion that the phone was searched before Miranda warningswere administered, because the video shows that, when thedetective eventually brought the phone into the interview roomand obtained defendant’s consent to look at some of its features,defendant had to unlock the phone with either a password orswiping pattern.County Court further indicated that there was likely someconversation between defendant and the police at the time hisphone was seized, and expressed concern that the substance ofthis alleged conversation was not revealed. According to thecourt, this information was essential to the suppressiondetermination as it bears directly on voluntariness ofdefendant’s statements and whether he was in custody. Thecourt’s comment concerning such alleged conversation was pureconjecture. The video contains an explanation for why defendantdid not have his phone; when defendant was looking for his phone,the detective stated that it was outside because there is apolicy of no phones in the interview room. Although it isunclear when the police obtained possession of defendant’s phone,the way that defendant was looking through his coat and pockets –in the interview room several minutes after receiving his Mirandawarnings — indicates that he was unaware that he did not have hisphone at that time. Regardless of whether the police accuratelyexplained the alleged phone policy, it is unlikely that areasonable person would feel that he or she was not free to leavebased on the police holding his or her cell phone outside theroom, especially if the person did not even know that the policehad obtained possession of the phone. For the same reason, therecord does not support the court’s suggestion that someconversation ensued when the police seized the phone. Even if aconversation did ensue regarding turning over the phone, there isno indication that such conversation constituted interrogation.The information contained in the record supports a findingthat defendant was not in custody when he arrived at the policestation, he was informed of and voluntarily waived his Mirandarights before any interrogation began and his statements giventhereafter were voluntary. Accordingly, defendant’s suppressionmotion should have been denied in its entirety.Egan Jr., Devine, Mulvey and Rumsey, JJ., concur.ORDERED that the order is modified, on the law and thefacts, by reversing so much thereof as suppressed defendant’sstatements to police and information gleaned from his phone;motion denied to said extent; and, as so modified, affirmed.ENTER:Robert D. MaybergerClerk of the Court
