SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

495 

KA 09-00388 

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ROBERT D. BREWER, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (WILLIAM T. EASTON OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County (David

D. Egan, J.), rendered January 9, 2009. The judgment convicted

defendant, upon a jury verdict, of criminal possession of a weapon in

the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him following a

jury trial of criminal possession of a weapon in the second degree

([CPW 2d] Penal Law § 265.03 [3]), defendant contends that Supreme

Court erred in refusing to suppress his written statement to the

police. We reject that contention. Contrary to defendant’s

contention, he was not in custody before giving his statement. 

After being released from jail on unrelated charges, defendant

was approached by an investigator from the Elmira Police Department,

who asked defendant if he would “come down and talk to” an

investigator. Defendant agreed, entered the investigator’s vehicle,

and was driven half of a block to the police station. At the station,

defendant agreed to wait there to speak to members of the Rochester

Police Department (RPD). Defendant waited, unrestrained, with his

girlfriend in an office. Approximately two hours later, an RPD

investigator arrived and took defendant to a separate office. 

Defendant agreed to waive his Miranda rights, and was interviewed for

“approximately a little over half an hour” to 45 minutes. During that

interview, defendant provided the investigator with a written

statement. At no point were any promises or threats made to

defendant, and at no time did defendant ask for an attorney, for an

end to the interview, or for permission to leave the room. Defendant

was unrestrained during the entire period. 
-2- 495 

KA 09-00388 

It is well settled that the test for determining whether a

defendant is in custody or has been subjected to a de facto arrest is

“what a reasonable [person], innocent of any crime, would have thought

had he [or she] been in the defendant’s position” (People v Yukl, 25

NY2d 585, 589, cert denied 400 US 851; see People v Hicks, 68 NY2d

234, 240; People v Kelley, 91 AD3d 1318, 1318, lv denied 19 NY3d 963). 

Here, defendant voluntarily accompanied the police officers to the

station, was not handcuffed, was permitted to sit with his girlfriend,

and “was not subjected to lengthy, coercive or accusatory questioning”

(People v Brown, 111 AD3d 1385, 1385, lv denied 22 NY3d 1155; see

People v Vargas, 109 AD3d 1143, 1143, lv denied 22 NY3d 1044; People v

Towsley, 53 AD3d 1083, 1084, lv denied 11 NY3d 795). “The mere fact

that the police may have suspected defendant of having [been involved

in a murder] prior to questioning him at the station does not compel a

finding that defendant was in custody” (People v Smielecki, 77 AD3d

1420, 1421, lv denied 15 NY3d 956). We thus conclude that “a

reasonable person, innocent of any crime, would not have thought he or

she was in custody if placed in defendant’s position” (id.).

Defendant further contends that the sentence imposed on the CPW

2d count is unduly harsh and severe. Defendant was acquitted of

felony murder and attempted robbery, and the jury was deadlocked on

the charge of intentional murder. The court took a partial verdict on

the CPW 2d count, sentenced defendant on that count alone, and ordered

a new trial on the intentional murder count (People v Brewer [appeal

No. 2], ___ AD3d ___ [June 20, 2014]). In his written statement,

defendant admitted that he had been hired by a codefendant to kill

another person and that he had proceeded to the designated location

with a loaded and operable firearm with the intent to use that firearm

against the victim. Regardless whether defendant changed his mind

after arriving at the designated location, the crime of CPW 2d already

had been completed. Moreover, a codefendant used defendant’s gun to

commit the murder. Given those circumstances and the nature of the

crime, we see no basis to modify the sentence imposed. 

Entered: June 20, 2014 Frances E. Cafarell

Clerk of the Court