Opinion
January 29, 1988
Appeal from the Cattaraugus County Court, Kelly, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The court erred in suppressing defendant's sneakers because defendant was not "in custody" at the time he voluntarily removed them for a close look by the police officer. "`"[C]ustody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived"'" (People v Johnson, 91 A.D.2d 327, 328, affd 61 N.Y.2d 932, quoting People v Rodney P., 21 N.Y.2d 1, 9). Questioning an individual in his own home, without more, is not sufficient to conclude that the interrogation was custodial (People v Claudio, 85 A.D.2d 245, 261, affd 59 N.Y.2d 556). There were, in this case, no additional significant circumstances upon which to predicate a finding of a custodial interrogation (see, People v Paulin, 25 N.Y.2d 445, 449).
In all other respects the order of the suppression court must be affirmed.