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Supreme Court, Queens County…cont

Thereafter, the defendant received the sentences that he bargained for and that his counsel requested be imposed. The sentences were not excessive. On his appeal, the defendant contends that all of his statements should be suppressed either because he was arrested on the street without probable cause, or else because when he was arrested the police knew or should have known of criminal proceedings pending against him and that he was represented by counsel in those proceedings. The defendant also submits that he was improperly deprived of exculpatory material to which he was so that the pretrial hearings were unfair. Those contentions are also without merit.

It is apparent from the record that the defendant was not under arrest when he was first stopped on the street, or later at the precinct when he was cooperating with the officers’ investigation. The authority to stop persons on public streets is derived from CPL 140.50 and the common-law right to inquire. Under CPL 140.50(1) and (3), a police officer may stop a person in a public place if he has a reasonable suspicion that the individual is committing, has committed, or is about to commit a crime. In addition, the police may stop a person pursuant to the common-law right to inquire if there exists “a founded suspicion that criminal activity is present”. In the instant case, two detectives in a radio car had received a communication describing defendant, who had just been seen with two companions, as the individual who had sold the homicide victim’s jewelry to a local shop some nine days before. The officers therefore had reasonable suspicion that he had committed a crime, and were justified in temporarily detaining him and his companions to the extent necessary to obtain explanatory information regarding their knowledge as to where and how the jewelry had been acquired. He agreed to accompany the police to the precinct to discuss the matter. From the record, it is apparent that he was neither handcuffed nor otherwise coerced to go.

The courts of this State have “rejected as standards for determining when a defacto arrest has taken place the wholly subjective belief of the officer, as well as that of the citizen”. The courts have looked instead to “what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position”. Among the factors taken into account when determining whether an individual has been in police custody are the amount of time spent with the police, whether he was physically restrained or his freedom was significantly restricted in any way, the degree of cooperation he exhibited, the atmosphere in which he was questioned, and whether the questioning was investigatory or accusatory in nature.

At the precinct, the defendant was not physically restrained, spent time with his girlfriend, and was subjected to investigative rather than accusatory questioning. He had indicated his willingness to cooperate, since he had not done “anything wrong”. Half an hour after his arrival, he made his first incriminating statement. It is apparent that a reasonable man, innocent of any crime, would not have perceived himself to be in custody at the time when he made his initial admissions. Further, since he was not yet in custody when he made those admissions, there was no violation of his right to counsel.

In any event, there would be no reason to impute to the authorities knowledge that there were criminal proceedings pending against the defendant and that he was represented by counsel in those proceedings, since the police were unaware of his actual surname until their questioning of him began. By pleading guilty, the defendant waived his contention that the prosecution failed to timely turn over certain Brady material to him. While not every claim is forfeited by a guilty plea, the plea does signal an agreement not to litigate the factual elements of the crime charged. In the instant case, the items not produced by the prosecution–an incomplete composite sketch found unsatisfactory by the complainant, voluminous photographic displays in which none of the defendants was recognized by either of the witnesses, and documentation concerning an investigation of other suspects who had been cleared by the police–go to the issue of factual guilt, which, while appropriate for litigation at a trial, are waived by a plea of guilty. There was no Bail Reduction.

We have examined the defendants’ remaining contentions, including the contentions raised in the defendant’s supplemental pro se brief, and find them to be without merit.

Accordingly, the court held that the judgments are affirmed.

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