Opinion
June 2, 1989
Appeal from the Ontario County Court, Reed, J.
Present — Dillon, P.J., Doerr, Green, Pine and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of manslaughter in the first degree and two counts each of rape in the first degree, sodomy in the first degree, and murder in the second degree. He contends that he was illegally detained without probable cause at the Sheriff's Department, and that his confession should have been suppressed. At the Huntley hearing, the court found that defendant was in custody after failing the polygraph test, and that the police had probable cause to detain him at that time. We find that the evidence was legally insufficient to support the suppression court's finding (see, People v. Yukl, 25 N.Y.2d 585, mot to amend remittitur denied 26 N.Y.2d 845, cert denied 400 U.S. 851; see also, People v. Bleakley, 69 N.Y.2d 490, 495), and we further conclude that defendant was not in custody prior to his confession (CPL 470.15; People v. Dyla, 142 A.D.2d 423, 432-433; People v. Bailey, 140 A.D.2d 356, 358; People v. McNeeley, 77 A.D.2d 205, 208-209). The uncontroverted proof at the Huntley hearing demonstrates that he remained voluntarily at the Sheriff's Department until that time and was cooperative throughout the day. He was offered coffee, he smoked cigarettes, he said he was not hungry but ate a sandwich at about 8:15 P.M., he had use of the bathroom, and, prior to the polygraph test, he was told explicitly that he was free to leave. The only factor that changed after the polygraph was that defendant was told he had failed it. An innocent person would not have believed that he was in custody based on that information. Although defendant may have felt obligated to cooperate with the police in order to appear innocent, that subjective view by defendant does not require a finding that he was in custody earlier (People v. Yukl, supra, at 591-592).
We have examined defendant's remaining arguments on appeal and find them to be without merit.