The interview took place over 3 ½ hours, after which defendant left. Considering the totality of circumstances surrounding each of the aforementioned interviews, none of defendant's statements was made while he was in custody (see People v. Mercado, 113 A.D.3d 930, 931–932, 978 N.Y.S.2d 449 2014, lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 253, 17 N.E.3d 508 2014; People v. Bennett, 179 A.D.2d 837, 838–839, 577 N.Y.S.2d 967 1992 ). Relatedly, defendant had no right to have counsel present during the third interview, given that it was noncustodial and no criminal action against defendant had been commenced (see People v. Lopez, 16 N.Y.3d 375, 380, 923 N.Y.S.2d 377, 947 N.E.2d 1155 2011 ).
unoccupied at the precise time of the burglary and was allegedly flea-infested and unsanitary, it still constituted a "dwelling" for purposes of the burglary statute as it was a "building which is usually occupied by a person lodging therein at night" (Penal Law § 140.00; see People v. Barney, 99 N.Y.2d 367, 372). Equally unpersuasive is the contention that defendant's written statement to police should have been suppressed because defendant was "inebriated" when he gave it. Our review of the Huntley hearing discloses no facts whatsoever to support such a finding (see People v. Morris, 245 A.D.2d 954, 955, lv denied 91 N.Y.2d 928; compare People v. Blanchard, 279 A.D.2d 808, 810, lv denied 96 N.Y.2d 826). The sole witness at the suppression hearing, a police investigator who questioned defendant about the burglary, testified that, although he did not specifically ask defendant if he was under the influence of alcohol at the time of questioning, defendant did not appear to be so (see People v. Bennett, 179 A.D.2d 837, 839). Moreover, this investigator did not recall smelling any alcohol on defendant's breath at the time.
We conclude that in light of the totality of the circumstances ( see, People v. Marino, 246 A.D.2d 491, lv denied 91 N.Y.2d 1009), an innocent person in defendant's position would not have reasonably considered herself in custody until after the discovery of the child's body. Significantly, defendant voluntarily entered the police station with her father and, although she made a statement which suggested foul play, there was no specific admission of criminal activity nor information pertaining to the fate of the child. The police took no action to restrain defendant and asked her only several nonadversarial questions in the police station's reception area ( see, People v. Finkle, 192 A.D.2d 783, lv denied 82 N.Y.2d 753; People v. Murphy, 188 A.D.2d 742, lv denied 81 N.Y.2d 890; People v. Bennett, 179 A.D.2d 837; People v. Doddy, 174 A.D.2d 997, lv denied 78 N.Y.2d 965). Defendant then voluntarily traveled to the river in her father's automobile. At the riverbank, defendant and her father approached Leonardo and directed him to a location at the river's edge. Prior to locating the child's body, neither defendant nor her father requested to go home or to leave the scene.
It is not determinative that defendant was questioned at the police station inasmuch as there is no evidence that she was restrained in any way (see, People v Murphy, supra). Further, the suppression evidence demonstrates that defendant went freely to the police station, which is evidence that she was not in custody (see, People v Bennett, 179 A.D.2d 837, 838; People v Oates, 104 A.D.2d 907, 911). Significantly, defendant was not told she could not leave and whether the State Police believed defendant was free to leave at the time is irrelevant inasmuch as no concerns of that nature were communicated to defendant (see, People v Bell, supra). The fact that defendant accompanied the police to the station under the pretext of examining photographs and she was told an untruth concerning the telephone records does not render the initial questioning custodial.
Finally, there is no merit to the claim that defendant's confession was involuntary and should have been suppressed. The record fully supports County Court's determination that defendant's waiver of his Miranda rights was knowing and intelligent (see, People v Williams, 62 N.Y.2d 285; People v Bennett, 179 A.D.2d 837, 839). Crew III, Mahoney, Casey and Harvey, JJ., concur.
At most, defendant's testimony presented a question of credibility which was properly within the province of County Court and the resolution of which should not be disturbed on appeal (see, People v Dobranski, 112 A.D.2d 541, 542, lv denied 66 N.Y.2d 614). Finally, we reject defendant's contention that his statements were involuntary because he was intoxicated while police questioned him. The record fully supports County Court's determination that defendant's waiver was knowing and intelligent and, accordingly, it should not be disturbed (see, People v Williams, 62 N.Y.2d 285, 290; People v Bennett, 179 A.D.2d 837, 839; People v Dobranski, supra, at 541-542). We have considered defendant's remaining contentions and find them also to be without merit.