Opinion
March 13, 1992
Appeal from the Chautauqua County Court, Adams, J.
Present — Denman, P.J., Callahan, Green, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to attempted arson in the second degree. On appeal, he contends that his oral and written statements to the police should have been suppressed because: (1) they were the product of coercion and were not freely and voluntarily made and (2) they were the product of custodial detention without probable cause.
Defendant maintains that his statements were made involuntarily because he was psychologically coerced by the police, because he was emotionally unstable, and because he was intoxicated. Whether a statement was involuntarily obtained depends upon the totality of the circumstances under which it was made (People v Anderson, 42 N.Y.2d 35, 38). Defendant's claim of psychological coercion is based primarily upon the police use of a hydrocarbon sniffer which detected the odor of accelerants on defendant's hands and on his head where his hair was singed. After the sniffer beeped indicating a positive result, a police officer asked defendant if he would like to tell them what happened. At that point, defendant started crying and confessed that he had started the fire.
The fact that defendant may have exhibited signs of being emotionally or mentally upset does not preclude a knowing and voluntary waiver of his Miranda rights (see, People v Avilez, 121 A.D.2d 391, 392, lv denied 68 N.Y.2d 767; People v Stroman, 118 A.D.2d 1006, 1008, lv denied 68 N.Y.2d 672). Moreover, the record establishes that defendant was not so intoxicated that he was unable to comprehend the Miranda warnings or that the waiver of his rights was not knowing and voluntary (see, People v Schompert, 19 N.Y.2d 300, 305-307, cert denied 389 U.S. 874; People v Castimore, 166 A.D.2d 915, lv denied 76 N.Y.2d 984; People v Williams, 147 A.D.2d 515, 516; People v Perry, 144 A.D.2d 706, lv denied 73 N.Y.2d 925).
We reject defendant's additional argument that his statements should have been suppressed because they were the product of custodial detention without probable cause. The record establishes that defendant voluntarily agreed to accompany the officer to the police station. Since "[c]onsent is a valid substitute for probable cause" (People v Hodge, 44 N.Y.2d 553, 559), we need not address defendant's argument that he was detained without probable cause (see, People v Lewis, 172 A.D.2d 1020, 1021). Thus, County Court properly denied defendant's motion to suppress.