Opinion
KA 03-00958.
November 21, 2003.
Appeal from an order of Supreme Court, Oneida County (Donalty, J.), entered January 30, 2003, which, after a hearing, granted the motion of defendant seeking to suppress oral and written statements made by him.
Michael A. Arcuri, District Attorney, Utica (Carla V. Di Marco of Counsel), for Plaintiff-Appellant.
Frank J. Nebush, Jr., Public Defender, Utica (Stewart A. Roberts of Counsel), for Defendant-Respondent.
Jack Adelman, Defendant-Respondent Pro Se.
Before: Present: Wisner, J.P., Hurlbutt, Scudder, Gorski, and Lawton, JJ.
MEMORANDUM AND ORDER
It is hereby Ordered that the order so appealed from be and the same hereby is unanimously reversed on the law, the motion is denied, and the matter is remitted to Supreme Court, Oneida County, for further proceedings on the indictment.
Memorandum: Supreme Court erred in granting the motion of defendant seeking to suppress oral and written statements made by him. In determining whether a defendant was in custody prior to receiving his Miranda warnings, the "test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position" ( People v. Yukl, 25 N.Y.2d 585, 589, rearg denied 26 N.Y.2d 845, cert denied 400 U.S. 851; see People v. Jacobs, 298 A.D.2d 954, 955, lv denied 99 N.Y.2d 559; People v. Scott, 288 A.D.2d 846, 847, lv denied 97 N.Y.2d 761; People v. Sanchez, 280 A.D.2d 891, lv denied 96 N.Y.2d 806). The evidence at the suppression hearing establishes that defendant voluntarily permitted the arresting officer to enter his home. There is nothing in the record to support the conclusion that a reasonable person would have believed that he was not free to leave until after the arresting officer refused to allow defendant to shower before leaving for the police station. It was only at that point that defendant was "physically deprived of his freedom of action in any significant way" ( People v. Rodney P., 21 N.Y.2d 1, 9; see People v. Johnson, 91 A.D.2d 327, 328, affd 61 N.Y.2d 932). "Because the initial statement[s] [were] not the product of pre- Miranda custodial interrogation, the post- Miranda detailed confession given by defendant cannot be considered the fruit of the poisonous tree" ( People v. Williams, 283 A.D.2d 998, 999, lv denied 283 A.D.2d 998, quoting People v. Flecha, 195 A.D.2d 1052, 1053). We therefore reverse the order, deny the motion to suppress, and remit the matter to Supreme Court, Oneida County, for further proceedings on the indictment.