People v. Hightower

2017 NY Slip Op 7573, 154 A.D.3d 636, 63 N.Y.S.3d 370

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 2017
• Docket: 4845 4649/11
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered July 10, 2012, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a term of six months, unanimously affirmed.

The court properly denied defendant’s motion to suppress a statement he made to the police before the administration of Miranda warnings. The record amply supports the court’s finding that defendant was not in custody at the time of the statement (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Defendant voluntarily accompanied the police to the precinct, he was not handcuffed or in any way restrained at the time he made the challenged statement, and he had been explicitly told that he was not under arrest (see e.g. People v Andrango, 106 AD3d 461 [1st Dept 2013], lv denied 21 NY3d 1040 [2013]; People v Colon, 54 AD3d 621, 622 [1st Dept 2008], lv denied 11 NY3d 923 [2009]). In any event, the record also supports the court’s finding that the challenged statement was a spontaneous, freely volunteered utterance that was unprompted by any police interrogation or the functional equivalent thereof (see People v Rivers, 56 NY2d 476 [1982]).

Defendant’s challenges to the prosecutor’s opening statement and summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 [1992]; People v DAlessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).

Concur — Richter, J.R, Webber, Kern and Moulton, JJ.