Opinion
October 1, 1990
Appeal from the County Court, Nassau County (Delin, J.).
Ordered that the judgment is affirmed.
While wearing a black "Ninja" costume, the defendant allegedly raped and sodomized the complainant in a laundry area located inside a cooperative apartment complex where the complainant lived and where the defendant was temporarily residing with a friend. The defendant argues that reversal of the judgment of conviction is warranted, inter alia, because the hearing court failed to suppress the defendant's statements and the Ninja costume, which was found inside the apartment where the defendant was staying. We disagree.
The weight of the evidence at the hearing demonstrates that the police entered and searched the apartment where the defendant was temporarily residing with the consent of the owner of the apartment. Accordingly, the costume and clothes were properly admitted into evidence (see, People v. Adams, 53 N.Y.2d 1, cert denied 454 U.S. 854; People v. Reid, 136 A.D.2d 578, cert denied 486 U.S. 1035; People v. Olkoski, 131 A.D.2d 706; People v. Messam, 112 A.D.2d 449; People v. Boccio, 107 A.D.2d 816).
Further, the defendant's initial statements to the police were properly admitted because he was not in custody at the time they were made. Questions of custody are "to be resolved by the application of the objective standard of whether a reasonable person in the defendant's position, innocent of any crime, would have believed he was free to leave the presence of the police" (People v. Bailey, 140 A.D.2d 356, 358; see also, People v McIntyre, 138 A.D.2d 634; People v. Oates, 104 A.D.2d 907). Because the weight of the evidence indicates the defendant's initial statements were noncustodial, the hearing court correctly declined to suppress them (see, People v. McIntyre, supra, at 636; see also, People v. Putland, 105 A.D.2d 199; People v. Oates, supra; People v. Yukl, 25 N.Y.2d 585).
We also reject the defendant's argument that his postarrest statements should have been suppressed because he was illegally arrested without a warrant. Ordinarily, a warrant is required to arrest a suspect in his home or in a place where he has a reasonable expectation of privacy (see, Payton v. New York, 445 U.S. 573). Because the police entered the apartment where the defendant was arrested with the owner's consent, and had probable cause, the warrantless arrest of the defendant was permissible (see, People v. Levan, 62 N.Y.2d 139; People v. Schof, 136 A.D.2d 578; People v. Bowers, 126 A.D.2d 897; People v. Long, 124 A.D.2d 1016; People v. Sanders, 122 A.D.2d 86). Thus, the defendant's postarrest statements, which were made after he voluntarily waived his Miranda rights, were properly admitted (see, People v. Casassa, 49 N.Y.2d 668; People v. Anderson, 42 N.Y.2d 35; People v. Hoyer, 140 A.D.2d 853; People v. Spivack, 111 A.D.2d 884).
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15).
We have considered the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Brown, Kunzeman and Sullivan, JJ., concur.