THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAVID RODRIGUEZ DEFENDANT APPELLANT (2013)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

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 AD3d 1456, 1458, lv denied 13 NY3d 942;  People v. Nunez, 51 AD3d 1398, 1400, lv denied 11 NY3d 792;  People v. Soroka, 28 AD3d 1219, 1220, lv denied 7 NY3d 818).   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, cert denied 397 U.S. 940;  People v. Lavere, 236 A.D.2d 809, 809, lv denied 90 N.Y.2d 860).   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;  Soroka, 28 AD3d at 1220;  Lavere, 236 A.D.2d at 809).   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 NY3d 122, 129;  People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851;  Lavere, 236 A.D.2d at 809).

Frances E. Cafarell

Clerk of the Court