PEOPLE v. DOWNEY (1998)

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 20.00, 120.05 [4] ) and criminal contempt in the first degree (Penal Law § 215.51[b] ) and sentencing him as a second felony offender to concurrent terms of incarceration of 11/212 to 3 years.   The sole contention of defendant on appeal is that County Court erred in denying his motion to suppress his statements on the ground that they were not preceded by Miranda warnings.

 The court properly refused to suppress defendant's initial oral statements at the police station.   Although those statements were not preceded by Miranda warnings, they were spontaneous and not in response to “interrogation”, i.e., words or actions by police that were intended or likely to elicit an incriminating response (see, Rhode Island v. Innis, 446 U.S. 291, 300-302, 100 S.Ct. 1682, 64 L.Ed.2d 297;  People v. Velasquez, 68 N.Y.2d 533, 537, 510 N.Y.S.2d 833, 503 N.E.2d 481;  People v. Ferro, 63 N.Y.2d 316, 318, 322-323, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717;  People v. Maerling, 46 N.Y.2d 289, 303, 413 N.Y.S.2d 316, 385 N.E.2d 1245).

 Similarly, the court properly refused to suppress defendant's subsequent oral and written statements.   The evidence established that defendant was not intoxicated to such a degree that he was incapable of voluntarily, knowingly, and intelligently waiving his Miranda rights (see, People v. Gadson, 239 A.D.2d 924, 661 N.Y.S.2d 803, lv. denied 90 N.Y.2d 905, 663 N.Y.S.2d 517, 686 N.E.2d 229;  People v. Gagliardi, 232 A.D.2d 879, 880, 649 N.Y.S.2d 214;  People v. Morales, 228 A.D.2d 525, 644 N.Y.S.2d 303, lv. denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344;  People v. Shabaz, 173 A.D.2d 498, 499, 569 N.Y.S.2d 971, lv. denied 79 N.Y.2d 923, 582 N.Y.S.2d 83, 590 N.E.2d 1211;  see generally, People v. Schompert, 19 N.Y.2d 300, 305-307, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert. denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157).

Judgment unanimously affirmed.

MEMORANDUM: