Aрpeal from a judgment of the County Court of Albany County (Breslin, J.), rendered August 16, 1996, upon a verdict convicting defendant of the crime of murder in the second degree.
On August 15, 1994, the badly decomposed body of Willie Price was discovered in his basement apartment at 47 Second Street in the City of Albany. Following а jury trial, defendant was acquitted of intentional murder in the second degree and convicted of depraved indifference murder in the second degree, and sentenced to a prison term of 25 years to life. On this appeal, defendant challenges the refusal of County Court to supрress defendant’s oral and written statements made to the police on September 1, 1996 and October 6, 1996, and contends that the trial evidence was insufficient as a matter of law to support a finding of guilt beyond a reasonable doubt.
On September 1, 1994, Detective Leonаrd Richuitti, in the company of two other plainclothes detectives, went to an Albany post office looking for defendant. At the time, Richuitti was aware through Gould that defendant had made a controlled drug purchase from Price, that defendant told Gould he could get information conсerning the Price homicide and that Gould had given defendant $40 to obtain this information. The detectives observed defendant at the post office and defendant consented to accompany the police officers “downtown” to speak to them. Outside of the post office but prior to entering the police vehicle, the officers handcuffed defendant’s hands in front of his body. In the vehicle, while driving to the police station, they read defendant his Miranda warnings.
Upon exiting the vehicle at the police garage, the officers removed the handcuffs and for the first time advised defendant that they wished to question him concerning this homicide. Defendant then became nervous, started to noticeably perspire and fainted. The police called the paramedics and, while waiting for them, defendant revived and was taken to an interrogation room. Beliеving that defendant would be transported to the hospital, Richuitti asked the defendant if he had any weapons on his person and defendant responded “no”. Richuitti further asked defendant if he could search a fanny pack strapped to defendant’s body and defendant gave the pаck to Richuitti. A search of the pack revealed a glassine envelope containing the residue of a substance which Richuitti believed to be cocaine and defendant was thereupon arrested for possession of a controlled substance in the seventh degreе.
After preparation of the necessary paperwork for an arraign
On September 8, 1994, Riсhuitti saw defendant in Police Court. During a conversation with defendant, Richuitti learned that defendant intended to plead guilty to the narcotics charge and that he was willing to take a polygraph test regarding the statement that he made to Richuitti at the hospital. Defendant did plead guilty to criminal possession of a controlled substance in the seventh degree and received a sentence of 60 days in jail. On October 6, 1994, defendant was transported to the Police Department
We first address defendant’s contention that the police lacked probable cause to take him into custody on September 1, 1994. The record establishes that by September 1, 1994, thе police possessed information establishing a relationship between defendant and Price, resulting largely from defendant’s periodic stays at Price’s apartment, that defendant claimed to possess information concerning the Price homicide and that witnesses placed defendant in the vicinity of Price’s apartment during the operative time frame, particularly one witness who identified defendant as the person who kicked in the door to Price’s apartment in early August 1994. In denying defendant’s suppression motion concerning the statement of September 1, 1994, County Court concluded that defendant was not in custody when he was transported from the post office to the police station.
Under the facts presented here, we conclude that no reasonable person, innocent of any crime, while sitting handcuffed in a police vehiсle with three plainclothes detectives, would believe that he or she was free to leave the presence of the police. The attempt by the police to explain the handcuffing of defendant as justified by safety concerns, both for themselves and for defendant, is not supported by the record which reveals that defendant was friendly and cooperative in his conduct and conversation at the post office and during the ride. Moreover, his hands were handcuffed in front of his body where he could still use them to attack the officers or to access his fanny pack, which had not yet been searched. While we recognize that the police may take appropriate self-protective measures by handcuffing a suspect under circumstances which do not rise to the level of an arrest (see, e.g., People v Allen,
The fact that defendant was detained in a custodial setting
Turning to the statement of defendant made at the hospital on Septembеr 1, 1994, we believe that there is not sufficient attenuation to support the admissibility of this statement. We agree with defendant’s contention that the search of his fanny pack, the discovery of the contraband residue and subsequent arrest on the possession of a controlled substance charge, and the custodial interrogation that occurred several hours thereafter at the hospital all stem from the illegal detention and render defendant’s statement the “fruit of the poisonous tree” which must be suppressed since no intervening act creating sufficient attenuatiоn had occurred. Nevertheless, we conclude that any error resulting from the failure to suppress defendant’s statement of September 1, 1994 was harmless beyond a reasonable doubt. The statement made by defendant was essentially exculpatory and at complete variance with later inculpatory statements. In our view, the record contains overwhelming proof of defendant’s guilt and there is no reasonable probability that the erroneously admitted statements contributed to defendant’s conviction (see, People v Crimmins,
With respect to the admissibility of the statements made by defendant on October 6, 1994, however, we reach a different conclusion. Although these statements were made at a time when defendant was in jail as the result of an illegal arrest for criminal possession of a controlled substance, such arrest does not confer upon defendаnt unlimited immunity from questioning regarding the Price homicide (cf., United States v Crews,
We next аddress defendant’s contention that his statements should be suppressed because they were obtained in violation of his right to counsel. It is well settled that where a defendant is in custody and represented by an attorney on a charge, he or she cannot be questioned without counsel present on the pending matter or any other matter (see, People v Burdo,
Likewise, we find no reason to disturb County Court’s refusal to suppress defendant’s statements of October 6, 1994. It is clear that on this date, any attorney-client relationship which existed with respect to the charge of criminal possession of a controlled substance in the seventh degree had long since terminated (see, People v Bing,
As a final matter, defendant’s contention that the evidence adduced at trial was insufficient to support his conviction is without merit. A verdict is supported by legally sufficient evidence when the evidence, viewed in the light most favorable to the prosecution, supports the elements of the crime beyond a reasonable doubt (see, People v Harper,
Mercure, J. P., Crew III, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.
Notes
Defendant was apparently still incarcerated serving his 60-day sentence imposed on September 8, 1994.