SUPPRESSION OF THE WEAPON WAS PROPERLY DENIED, BUT DEFENDANT’S STATEMENT ADMITTING POSSESSION OF THE WEAPON SHOULD HAVE BEEN SUPPRESSED; ALTHOUGH THE HARMLESS ERROR DOCTRINE IS RARELY APPLIED TO UPHOLD A GUILTY PLEA WHERE SUPPRSSION SHOULD HAVE BEEN GRANTED, HERE THE APPELLATE DIVISION DETERMINED THE PLEA WOULD NOT HAVE BEEN AFFECTED BY SUPPRESSION OF THE STATEMENT; THE DISSENT DISAGREED (FOURTH DEPT). ​

The Fourth Department, over a dissent, determined defendant’s guilty plea to possession of a weapon could not have been affected by the failure to suppress his statement admitting possession of the weapon. The Fourth Department determined the statement was a product of unwarned custodial interrogation:

‘The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response’ ” … . “Although the police may ask a suspect preliminary questions at a crime scene in order to find out what is transpiring . . . , where criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation” … . Here, after defendant had been restrained and handcuffed, an officer asked defendant, “what’s going on? Are you all right? Are you okay?” Defendant responded, “you saw what I had on me. I was going to do what I had to do.” We conclude that the interaction between defendant and the officer “had traveled far beyond a ‘threshold crime scene inquiry’ ” and, under the circumstances, it was likely that the officer’s particular questions ” ‘would elicit evidence of a crime and, indeed, it did elicit an incriminating response’ ” … . …

“[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he [or she] states or reveals his [or her] reason for pleading guilty” (People v Grant, 45 NY2d 366, 379-380 [1978]). “The Grant doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no ‘reasonable possibility that the error contributed to the plea’ ” … . People v Robles, 2022 NY Slip Op 07336, Fourth Dept 12-23-22

Practice Point: This case is rare exception to the rule that a guilty plea will not stand if a suppression motion should have been granted. Here the appellate division determined suppression of defendant’s statement admitting possession of the weapon would not have affected his decision to plead guilty because the weapon itself had not been suppressed. There was a dissent.