PEOPLE v. RIVERA (2001)

Judgment, Supreme Court, New York County (Ira Beal, J. at suppression hearing;  Mary McGowan Davis, J. at non-jury trial and sentence), rendered December 2, 1998, convicting defendant of criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 2 1/212 to 5 years and 1 1/212 to 3 years, respectively, unanimously affirmed.

 Defendant's motion to suppress his statement to the police was properly denied.   There is no basis upon which to disturb the court's credibility determinations, which are supported by the record.   The hearing court correctly found that defendant's questioning was not custodial where defendant voluntarily accompanied the police to the station, was not handcuffed, was left alone at the station house for a period of time unguarded and unrestrained, and was not subjected to lengthy, coercive or accusatory questioning.   In sum, based on the totality of these factors, a reasonable person in defendant's position, innocent of any crime, would have believed he was free to leave the presence of the police (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;  People v. Walker, 181 A.D.2d 636, 582 N.Y.S.2d 108, lv. denied 79 N.Y.2d 1055, 584 N.Y.S.2d 1023, 596 N.E.2d 421;  People v. Centano, 153 A.D.2d 494, 545 N.Y.S.2d 131, affd. 76 N.Y.2d 837, 560 N.Y.S.2d 121, 559 N.E.2d 1280).   Moreover, since no promises or threats were made and defendant was not in custody, the deception employed by the police was not so fundamentally unfair as to render defendant's subsequent statements involuntary, or to deny him due process (see, People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188;  People v. Williams, 272 A.D.2d 485, 708 N.Y.S.2d 875, lv. denied 95 N.Y.2d 873, 715 N.Y.S.2d 228, 738 N.E.2d 376;  People v. Sullivan, 224 A.D.2d 460, 638 N.Y.S.2d 116, lv. denied 88 N.Y.2d 995, 649 N.Y.S.2d 402, 672 N.E.2d 628;  see also, People v. Tarleton, 184 A.D.2d 463, 585 N.Y.S.2d 409, lv. denied 80 N.Y.2d 910, 588 N.Y.S.2d 836, 602 N.E.2d 244).   We also note that as soon as defendant began to incriminate himself, he received Miranda warnings.