SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

790 

KA 09-01205 

PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JOHNNY L. ANTHONY, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM PIXLEY OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Alex R. Renzi,

J.), rendered January 21, 2009. The judgment convicted defendant,

upon his plea of guilty, of criminal possession of a weapon in the

second degree and criminal possession of a weapon in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon his plea of guilty of, inter alia, criminal possession of a

weapon in the second degree (Penal Law § 265.03 [3]). Contrary to

defendant’s contention, County Court properly refused to suppress his

statement made to the police despite the fact that he had not yet been

advised of his Miranda rights. The record of the suppression hearing

establishes that a police officer approached defendant in the parking

lot of his place of employment following the officer’s receipt of a

report that defendant possessed a handgun. Defendant denied that he

possessed a weapon and, following a pat-down search of his person (see

CPL 140.50 [1], [3]; People v De Bour, 40 NY2d 210, 223), he consented

to a search of his lunch box and his vehicle. Following the discovery

of the weapon in the vehicle, an officer asked defendant whether he

knew what had been found, to which defendant replied that the weapon

belonged to his brother and that defendant carried it for protection. 

It is axiomatic that “both the elements of police ‘custody’ and

police ‘interrogation’ must be present before law enforcement

officials constitutionally are obligated to provide the procedural

safeguards imposed upon them by Miranda” (People v Huffman, 41 NY2d

29, 33). Although the officer’s question was accusatory rather than

investigatory in nature inasmuch as it was likely to elicit an

incriminating response (see People v Brown, 49 AD3d 1345, 1346), we

nevertheless conclude that the court properly determined that
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KA 09-01205 

defendant was not in custody when he made the incriminating response. 

“The standard for assessing a suspect’s custodial status is whether a

reasonable person innocent of any wrongdoing would have believed that

he or she was not free to leave” (People v Paulman, 5 NY3d 122, 129;

see People v Taylor, 82 AD3d 1133). Here, defendant voluntarily

consented to the search of his vehicle and stood, unrestrained, in the

parking lot of his place of employment while the search was conducted

(see generally Taylor, 82 AD3d at 1133-1134). Under these

circumstances, we conclude that the court properly determined that

defendant was not in custody when he made the statement and thus that

the police were not obligated to advise him of his Miranda rights at

that time.

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court