PEOPLE v. LAVERE (1997)

 We reject the contention of defendant that County Court should have granted his motion to suppress because the search warrant application failed to satisfy the reliability requirement of the Aguilar-Spinelli test.   The information in the affidavit of the military police investigator is presumed to be reliable (see, People v. Parris, 83 N.Y.2d 342, 347, 350, 610 N.Y.S.2d 464, 632 N.E.2d 870;  People v. Hetrick, 80 N.Y.2d 344, 349, 590 N.Y.S.2d 183, 604 N.E.2d 732;  People v. Petralia, 62 N.Y.2d 47, 52, 476 N.Y.S.2d 56, 464 N.E.2d 424, cert. denied 469 U.S. 852, 105 S.Ct. 174, 83 L.Ed.2d 109).   Additionally, the reliability of the informant was established through evidence that he participated in a controlled buy of marihuana from defendant's residence (see, People v. Davenport, 231 A.D.2d 809, 647 N.Y.S.2d 306 ;  People v. Rodriguez, 201 A.D.2d 890, 891, 610 N.Y.S.2d 899, lv. denied 83 N.Y.2d 857, 612 N.Y.S.2d 389, 634 N.E.2d 990;  People v. Miner, 126 A.D.2d 798, 800, 510 N.Y.S.2d 300).

 We likewise reject the contention that the court erred in failing to suppress the oral statements made by defendant to the police before he was given his Miranda warnings.   The court's determination that defendant was not in custody when he made the challenged statements must be accorded great weight and should not be disturbed unless clearly erroneous (see, People v. Stokes, 212 A.D.2d 986, 987, 623 N.Y.S.2d 55, lv. denied 86 N.Y.2d 741, 631 N.Y.S.2d 622, 655 N.E.2d 719).   The record establishes that, when the search warrant of defendant's residence was executed, defendant was not placed in handcuffs or otherwise restrained and was not told that he was under arrest.   Furthermore, although defendant initially was asked by the police to sit on the couch in the living room during the search, he was thereafter allowed to move about the house.   Under those circumstances, a reasonable man innocent of any crime would not have thought himself to be in custody (see generally, People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, mot. to amend remittitur denied 26 N.Y.2d 845, 309 N.Y.S.2d 593, 258 N.E.2d 90, rearg. denied 26 N.Y.2d 883, 309 N.Y.S.2d 1032, 258 N.E.2d 223, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89).

We have reviewed defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: