PEOPLE v. UNIQUE DIVINE, 6 N.Y.3d 790 (2006)

2006 NY Slip Op 01048, 845 N.E.2d 457, 812 N.Y.S.2d 26

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. UNIQUE DIVINE, Appellant.

66 SSM 2.Court of Appeals of the State of New York.
Decided February 9, 2006.

APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 8, 2005. The Appellate Division affirmed a judgment of the Supreme Court, Bronx County (Denis Boyle, J., at suppression hearing; David Stadtmauer, J., at jury trial and sentence), which had convicted defendant, upon a jury verdict, of criminal possession of a forged instrument in the second degree.

Defendant and two other men were arrested after one of the men entered a pharmacy to pick up drugs under forged prescriptions. The suppression court found that defendant’s warrantless arrest was unlawful but denied his motion to suppress statements he made several hours after the arrest.

The Appellate Division concluded that the trial court properly denied defendant’s suppression motion and that the record supported the court’s determination that defendant’s statement was attenuated from his unlawful arrest, where there was an interval of more than four hours between defendant’s arrest and interrogation, there was a significant intervening event, consisting of a reliable statement by an accomplice that implicated defendant and provided probable cause for his arrest, and there was no flagrant government conduct.

People v. Divine, 21 AD3d 767, affirmed.

Page 791

Dewey Ballantine LLP, New York City (Molly Lehr an Kathryn C. Ellsworth of counsel), and Office of the Appellate Defender (Richard M. Greenberg and Risa Gerson of counsel) for appellant.

Robert T. Johnson, District Attorney, Bronx (Jennifer Marinaccio of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH Concur.

OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. Because there is record support for the Appellate Division finding of attenuation, the determination presents a mixed question of law and fact beyond our further review.