Opinion
November 18, 1991
Appeal from the Supreme Court, Queens County (Lakritz, J.).
Ordered that the judgment is affirmed.
The defendant contends that his questioning at the police station for one to two hours prior to being given his Miranda warnings was custodial in nature and, therefore, the statements made by him, prior to and after being read his Miranda rights, should be suppressed (see, Miranda v. Arizona, 384 U.S. 436).
"In deciding whether a defendant was in custody prior to receiving his warnings * * * [t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he been in the defendant's position" (People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851). Factors to be considered include, (1) the amount of time the defendant spent with the police, (2) whether his freedom of action was restricted in any significant manner, (3) the location and atmosphere under which the defendant was questioned, (4) the degree of cooperation exhibited by the defendant, (5) whether he was apprised of his constitutional rights, and (6) whether the questioning was investigatory or accusatory in nature (see, People v. Arcese, 148 A.D.2d 460).
Here, the defendant came to the police station voluntarily, accompanied by his mother. He was not handcuffed and his freedom of movement was not restrained. The questioning was investigatory and not accusatory, and he spent only one to two hours answering questions prior to being read his rights. Under these circumstances, we find that a reasonable person in the defendant's position, innocent of any crime, would not have believed he was in custody. Therefore, the hearing court properly determined that any statements made by the defendant were admissible.
We also reject the defendant's contention that the hearing court erred in denying his request to call the complaining witness to testify regarding the identification procedure. The defendant waited for four months after the court had asked if any more witnesses would be called before making his request for an adjournment to call the complainant. At that point, the hearings had extended over some eight months. Under these circumstances, we find that the court properly exercised its discretion in denying the request (see, People v. Spears, 64 N.Y.2d 698).
We have examined the defendant's remaining contentions and find them to be without merit. Kunzeman, J.P., Sullivan, Lawrence and Balletta, JJ., concur.