Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. David RODRIGUEZ, Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.), rendered March 30, 2009. The judgment convicted defendant upon his plea of guilty of, inter alia, course of sexual conduct against a child in the first degree. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.), rendered March 30, 2009. The judgment convicted defendant upon his plea of guilty of, inter alia, course of sexual conduct against a child in the first degree.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of, inter alia, course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ), defendant contends that Supreme Court erred in refusing to suppress statements that he made in his home to a police investigator who was executing a search warrant. We reject that contention. The court properly determined that Miranda warnings were not required because defendant was not in custody when he made the statements at issue ( see People v. Witherspoon, 66 A.D.3d 1456, 1458, 885 N.Y.S.2d 829,lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922;People v. Nunez, 51 A.D.3d 1398, 1400, 857 N.Y.S.2d 854,lv. denied11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104;People v. Soroka, 28 A.D.3d 1219, 1220, 813 N.Y.S.2d 619,lv. denied7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809). Defendant was not handcuffed or otherwise restrained during the interview or the execution of the search warrant, and he was free to move about the apartment ( see People v. Cerrato, 24 N.Y.2d 1, 8, 298 N.Y.S.2d 688, 246 N.E.2d 501,cert. denied397 U.S. 940, 90 S.Ct. 951, 25 L.Ed.2d 120;People v. Lavere, 236 A.D.2d 809, 809, 654 N.Y.S.2d 61,lv. denied90 N.Y.2d 860, 661 N.Y.S.2d 187, 683 N.E.2d 1061). Defendant was not told that he was under arrest and, indeed, the investigator left the apartment without arresting defendant ( see Cerrato, 24 N.Y.2d at 8–9, 298 N.Y.S.2d 688, 246 N.E.2d 501;Soroka, 28 A.D.3d at 1220, 813 N.Y.S.2d 619;Lavere, 236 A.D.2d at 809, 654 N.Y.S.2d 61). We conclude that, under those circumstances, a reasonable person innocent of any wrongdoing would not have believed that he or she was in custody ( see People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239;People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172,cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;Lavere, 236 A.D.2d at 809, 654 N.Y.S.2d 61).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.