People v. Fong

233 A.D.2d 115, 649 N.Y.S.2d 412, 1996 N.Y. App. Div. LEXIS 11393

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1996
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Mary McGowan Davis, J.), rendered April 20, 1994, convicting defendant, upon his plea of guilty, of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to a term of l1/2 to 3 years to run consecutively to time remaining on a previous conviction, unanimously affirmed.

Giving due deference to the hearing court’s credibility determinations (People v Fonte, 159 AD2d 346, lv denied 76 NY2d 734), we find that defendant could not have reasonably believed he was under arrest when asked whether he had a driver’s license and paperwork for the car that he was ultimately convicted of unlawfully possessing (People v Yukl, 25 NY2d 585, cert denied 400 US 851). Although defendant had initially been in the custody of private security guards (cf., People v Jones, 47 NY2d 528), the police, prior to further investigation that led to his arrest, did nothing to give defendant the impression that the nature of the custody had changed to include the participation of the police. Rather, a reasonable person in defendant’s position would have thought that the officer’s brief questioning was intended to clarify the situation during the initial investigation of a crime, not to elicit admissions or evidence of a crime (see, People v Huffman, 41 NY2d 29; People v Adams, 225 AD2d 506, lv denied 88 NY2d 932). Accordingly, Miranda warnings were not required. We have considered defendant’s other arguments and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Ross, Tom and Mazzarelli, JJ.