Opinion
4845, 4649/11.
10-31-2017
The PEOPLE of the State of New York, Respondent, v. Kahn HIGHTOWER, Defendant–Appellant.
Resko Law Office, P.C., Mount Kisco (Michael Resko of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Resko Law Office, P.C., Mount Kisco (Michael Resko of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
RICHTER, J.P., WEBBER, KERN, MOULTON, JJ.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered July 10, 2012, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a term of six months, unanimously affirmed.
The court properly denied defendant's motion to suppress a statement he made to the police before the administration of Miranda warnings. The record amply supports the court's finding that defendant was not in custody at the time of the statement (see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ). Defendant voluntarily accompanied the police to the precinct, he was not handcuffed or in any way restrained at the time he made the challenged statement, and he had been explicitly told that he was not under arrest (see e.g. People v. Andrango, 106 A.D.3d 461, 966 N.Y.S.2d 372 [1st Dept.2013], lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 [2013] ; People v. Colon, 54 A.D.3d 621, 622, 864 N.Y.S.2d 14 [1st Dept.2008], lv. denied 11 N.Y.3d 923, 874 N.Y.S.2d 9, 902 N.E.2d 443 [2009] ). In any event, the record also supports the court's finding that the challenged statement was a spontaneous, freely volunteered utterance that was unprompted by any police interrogation or the functional equivalent thereof (see People v. Rivers, 56 N.Y.2d 476, 453 N.Y.S.2d 156, 438 N.E.2d 862 [1982] ).
Defendant's challenges to the prosecutor's opening statement and summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept.1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1992] ; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept.1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).