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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Jevan THOMAS, Appellant.

Decided: March 18, 2002

GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, HOWARD MILLER, THOMAS A. ADAMS, JJ. Andrew C. Fine, New York, N.Y. (Laura Lieberman Cohen of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (F. Rivera, J.), rendered October 26, 1998, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contentions, he was not in custody when he made statements to detectives in his apartment in the presence of his mother or when he and his mother were at the precinct stationhouse before he was given Miranda warnings (see, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).   A reasonable person in his position, who was innocent of any crime, would have considered himself free to leave during that time (see, 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. Ellerbe, 265 A.D.2d 569, 697 N.Y.S.2d 643;  People v. King, 222 A.D.2d 699, 635 N.Y.S.2d 672;  People v. Blake, 177 A.D.2d 636, 576 N.Y.S.2d 341).   The questioning by the detectives was investigatory rather than accusatory.   The defendant was not handcuffed, and he was cooperative and was always in the presence of his mother.   Consequently, the hearing court properly determined that the statements made by the defendant prior to his being administered Miranda warnings should not be suppressed.

Additionally, the evidence supports the hearing court's determination that when the defendant was no longer free to leave, the detectives already had informed him of his Miranda rights and that he knowingly, intelligently, and voluntarily waived those rights.   Accordingly, the statements he made after he had been administered his Miranda warnings were also admissible.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

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