PEOPLE v. INGRAM (2005)

Judgment, Supreme Court, Bronx County (Megan Tallmer, J. at hearing;  Richard Lee Price, J. at jury trial and sentence), rendered February 7, 2003, convicting defendant of assault in the first degree, and sentencing her to a term of 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 6 years, and otherwise affirmed.

 The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ), including its resolution of a discrepancy between a detective's testimony on direct and cross-examination.

 Defendant's confession was not the product of an unlawful detention.   The record supports the hearing court's finding that defendant voluntarily accompanied detectives to the police station for the purpose of assisting in an investigation of her baby's injuries, and that she was not in custody at the time she made the confession (see People v. Morales, 42 N.Y.2d 129, 137-138, 397 N.Y.S.2d 587, 366 N.E.2d 248 [1977], cert. denied 434 U.S. 1018, 98 S.Ct. 739, 54 L.Ed.2d 765 [1978] ).   Given the totality of the circumstances, a reasonable innocent person in defendant's position would not have thought she had been seized by the police (see People v. Centano, 76 N.Y.2d 837, 560 N.Y.S.2d 121, 559 N.E.2d 1280 [1990];  People v. Yukl, 25 N.Y.2d 585, 590-592, 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 was never handcuffed or otherwise restrained, and she was left alone in an unlocked room for periods of time (see e.g. People v. Rivera, 7 A.D.3d 358, 776 N.Y.S.2d 565 [2004], lv. denied 3 N.Y.3d 741, 786 N.Y.S.2d 821, 820 N.E.2d 300 [2004] ).   Furthermore, there was nothing about the police questioning to suggest to defendant that she had been taken into custody.   The record supports the hearing court's conclusion that custody commenced only after defendant made an inculpatory statement.

 The record also supports the hearing court's finding that defendant never made an unequivocal assertion of her right to remain silent (see People v. Hendricks, 90 N.Y.2d 956, 665 N.Y.S.2d 45, 687 N.E.2d 1328 [1997];  see also Davis v. United States, 512 U.S. 452, 459-60, 114 S.Ct. 2350, 129 L.Ed.2d 362 [1994] ).   At the end of the Miranda warnings, when the detective asked defendant if she wanted to speak to the police, defendant answered in the negative but immediately asked what the question meant.   When the detective gave an explanation in which he reiterated that defendant was not obligated to speak to the police, defendant agreed to answer questions.

 We find the sentence excessive to the extent indicated.

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.