People v. Kelly

221 A.D.3d 1265

200 N.Y.S.3d 517

The PEOPLE of the State of New York, Respondent,

v.Ruthann E. KELLY, Appellant.

112256

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 11, 2023

Decided and Entered: November 22, 2023

John A. Cirando, Syracuse, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Devin J. Anderson of counsel), for respondent.

Before: Clark, J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Aarons, J.

in the fifth degree and two countsAppeal from a judgment of the County Court of Washington County (Kelly S. McKeighan, J.), rendered February 21, 2020, convicting defendant upon her plea of guilty of the crimes of promoting prison contraband in the first degree, criminal possession of a controlled substance in the fifth degree and promoting prison contraband in the second degree (two counts).

In 2019, defendant went to a correctional facility to visit an incarcerated individual. Upon proceeding through security, a canine alerted to the possible presence of narcotics on defendant. An investigator accompanied defendant to a separate conference room where defendant apologized, admitted that she had "some stuff" and removed small balloons from her pants containing Xanax, Lyrica and marihuana. In connection with this, defendant was charged by indictment with promoting prison contraband in the first degree, criminal possession of a controlled substance in the fifth degree and two counts of promoting prison contraband in the second degree. In an omnibus motion, defendant, among other things, sought suppression of the oral and written statements that she had made to the investigator, in addition to the physical evidence obtained. County Court denied the motion with respect to the physical evidence but reserved decision relative to the oral and written statements pending the completion of a Huntley hearing. Following a Huntley hearing, the court denied the motion seeking to suppress defendant's oral and written statements. Defendant then pleaded guilty as charged and was sentenced to various concurrent prison terms and periods of postrelease supervision. Defendant appeals.

As an initial matter, by pleading guilty, defendant is foreclosed from asserting that the evidence presented to the grand jury was not legally sufficient (see People v. Hansen, 95 N.Y.2d 227, 232, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Wilburn, 158 A.D.3d 894, 894–895, 71 N.Y.S.3d 181 [3d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ). Defendant also contends that count 1 of the indictment charging her with promoting prison contraband in the first degree was jurisdictionally defective because 10 pills of Xanax do not constitute "dangerous contraband" within the meaning of Penal Law § 205.25(1). Although defendant characterizes the claim as one presenting a jurisdictional defect to count 1 of the indictment, the claim is directed to the evidentiary sufficiency of the indictment and, therefore, was forfeited by the guilty plea (see People v. Guerrero, 28 N.Y.3d 110, 116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016] ; People v. Turner, 202 A.D.3d 1375, 1377, 163 N.Y.S.3d 696 [3d Dept. 2022], lv. denied 38 N.Y.3d 1036, 169 N.Y.S.3d 244, 189 N.E.3d 351 [2022] ; People v. Brice, 146 A.D.3d 1152, 1154, 46 N.Y.S.3d 282 [3d Dept. 2017], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017] ). Defendant's argument that County Court erred in granting the People's motion to amend the indictment is unpreserved given that defendant did not oppose the motion (see People v. Houze, 177 A.D.3d 1184, 1187, 115 N.Y.S.3d 141 [3d Dept. 2019], lv denied 34 N.Y.3d 1159, 120 N.Y.S.3d 259, 142 N.E.3d 1161 [2020] ).

Defendant contends that County Court erred by not suppressing her oral and written statements because they were made in a custodial setting and without Miranda warnings.¹ The Huntley hearing testimony reflects that, when defendant entered the visiting area of the correctional facility, she had passed through multiple doors and security gates. To get to the area by the visitor room and where the investigator and canine handler were posted, defendant went through a large, heavy metal door and then numerous security gates. The investigator explained that only one set of gates could be open at a time for security purposes. After defendant proceeded through the last gate, a canine alerted to the possible presence of narcotics on defendant. When the canine alerted, the metal door behind defendant was closed and would have required a security officer to push a button to open it. The canine handler then advised an investigator about the alert.

The investigator asked defendant to accompany him, to which defendant agreed. They proceeded to an administrative wing of the correctional facility, which required a security guard to buzz them through another gate. The investigator walked behind defendant as they proceeded down a hallway, which the investigator described as being "probably 50 feet in length, then it jockeys off to the right, and there is another hallway another 40 feet in length." They then entered a conference room and, upon doing so, the investigator immediately inquired of defendant as to why the canine alerted. Defendant responded, "I'm sorry, I'm sorry," and the investigator, in response, asked "[W]hy are you sorry?" Defendant then disclosed that she had "some stuff," reached into the front of her pants and revealed small balloons with the contraband inside of them. The investigator testified that he then read defendant her Miranda rights, and defendant confirmed that she understood them. The investigator took a statement from defendant, which he subsequently reduced to writing. As part of the written statement, defendant advised him that she came to the correctional facility to give drugs to an incarcerated individual.

In a correctional facility, when an incarcerated individual is questioned, Miranda warnings are unnecessary unless "the circumstances of the detention and interrogation of [the incarcerated individual] are no longer analogous to those kinds of detentions found not custodial in nonprison settings, but instead entail added constraint that would lead [an incarcerated individual] reasonably to believe that there has been a restriction on that person's freedom over and above that of ordinary confinement in a correctional facility" ( People v. Alls, 83 N.Y.2d 94, 100, 608 N.Y.S.2d 139, 629 N.E.2d 1018 [1993], cert denied 511 U.S. 1090, 114 S.Ct. 1850, 128 L.Ed.2d 474 [1994] ). Of course, defendant was a visitor to the correctional facility, and not an incarcerated individual. Although it does not appear that defendant would be subject to the "added constraint" requirement ( id. ), the Court of Appeals has nonetheless recognized that, in certain situations, Miranda warnings must be administered in a correctional facility.

That said, the need for Miranda warnings is not triggered unless an individual is subject to a custodial interrogation (see People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] ). In assessing whether an individual is in custody when an incriminating statement is made, a court examines "whether a reasonable person, innocent of any crime, would have felt free...