People v. Davis
637 N.Y.S.2d 977
N.Y. App. Div.
1996
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—Appeal by the defendant from a judgment of the County Court, Nassau County *542(Jonas, J.), rendered April 11, 1994, convicting him of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapоn in the second degree, upon a jury verdict, and imposing sentence., The appeal brings up for review thе denial, after a hearing, of those branches of thе defendant’s omnibus motion which were to suppress physiсal evidence and statements made by him to the pоlice.

Ordered that the judgment is affirmed.

We reject the defendant’s contention that his initial inculpatory statement to the detectives should have ‍​​​​‌​‌‌‌‌​​​​​‌​​​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌​‌‌​‌‌‍been suppressed as the result of a custodial interrogation which was conducted without the benefit of Miranda warnings. The test to determine whether an individual is in custody so as to trigger the requirement that Miranda warnings be provided is whethеr a reasonable person, innocent of any crime, would have thought he or she was in custody under the circumstances (see, People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851; People v Nolcox, 190 AD2d 824; People v Smedman, 184 AD2d 600, 604). The evidence adduced at the suppression hearing indicated that when the detective first sрoke to the defendant at his home, the detective. merely informed the defendant that he was ‍​​​​‌​‌‌‌‌​​​​​‌​​​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌​‌‌​‌‌‍investigating a shooting. Before any further conversation was had, the dеfendant admitted to being the shooter. This statement was sрontaneous and not the product of police interrogation (see, People v Gonzalez, 75 NY2d 938, cert denied 498 US 833; People v Maerling, 46 NY2d 289, 302-303; People v Simmons, 210 AD2d 441). Under these circumstances, a reasonable person would not believe that he or shе was in custody at the time the defendant uttered the inculрatory statement.

We agree, however, with the defеndant’s contention that his subsequent statements should have bеen suppressed because they were the prоduct of custodial interrogation. Once the defendаnt admitted to being the shooter, it is inconceivable thаt he harbored any reasonable expectation that he had the right to leave. Consequently, he was in сustody at that time (cf., People v Smith, 214 AD2d 845). Therefore, the detective should ‍​​​​‌​‌‌‌‌​​​​​‌​​​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌​‌‌​‌‌‍have given the defendant his Miranda rights before questioning him further (see, Miranda v Arizona, 384 US 436, 444, 467-468). Consequently, the defendant’s subsequent statements should have been suppressed. The error, however, in admitting these statements at trial was harmless in light оf the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230, 241-242).

Contrary to the defendant’s contention, the suppression court properly denied suppression of the evidеnce seized at his house. *543The testimony adduced at the suppression hearing indicated that the defendant’s mоther, with whom the ‍​​​​‌​‌‌‌‌​​​​​‌​​​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌​‌‌​‌‌‍defendant lived, voluntarily consented to thе warrantless search of the premises by the detectives (see, People v Kelley, 220 AD2d 456; People v Miller, 174 AD2d 989; see also, People v Gonzalez, 39 NY2d 122, 128-130). Moreover, the defendant himself informed the detеctives where the evidence in question was locаted and he voiced no objection to their retrieving the evidence from the house (see, People v Kelley, supra; People v Miller, supra).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contention is unpreserved for appellate review (see, People v Tevaha, 84 NY2d 879, 881). O’Brien, J. P., Sullivan, ‍​​​​‌​‌‌‌‌​​​​​‌​​​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌​​‌​‌‌​‌‌‍Copertino and Joy, JJ., concur.