Opinion
October 5, 1987
Appeal from the Supreme Court, Queens County (Linakis, J.).
Ordered that the judgment is affirmed.
We reject the defendant's contention that his confession should have been suppressed on the ground that the police allegedly placed him in custody without probable cause in order to question him (see, People v. Edwards, 124 A.D.2d 818, lv denied 69 N.Y.2d 827). The record unequivocally establishes, and the hearing court found, that the defendant voluntarily accompanied the detectives to the police station. The defendant was neither handcuffed nor frisked, and, in fact, was able to throw a packet of cocaine under the police car as he exited (see, People v. Quartararo, 113 A.D.2d 845). Additionally, the record establishes that the questioning at the precinct was conducted under noncustodial circumstances. The defendant was free to leave until he confessed to the crime. The fact that the defendant was given his Miranda rights does not compel a finding that he was in custody, particularly under these circumstances (see, People v. Busuttil, 115 A.D.2d 655). In sum, there is no reason to disturb the factual finding of the hearing court that the defendant was not in custody until he confessed (see, People v. Prochilo, 41 N.Y.2d 759).
We also find no merit to the defendant's contention that his right to counsel was violated. The right to counsel attaches even though the interrogation is conducted in a noncustodial setting where the person "unequivocally" informs the police of his intention to retain counsel for the matter under investigation (see, People v. Rowell, 59 N.Y.2d 727). In this case, there was no request for counsel made by the defendant, and the hearing court found that the defendant's father only asked the police whether counsel was needed. Such a question does not invoke the defendant's right to counsel (see, People v. Hartley, 65 N.Y.2d 703; People v. Johnson, 55 N.Y.2d 931, revg 79 A.D.2d 201).
Lastly, under the totality of the circumstances, the defendant was afforded effective assistance of counsel (see, People v Morris, 100 A.D.2d 630, affd 64 N.Y.2d 803; People v. Boero, 117 A.D.2d 814). Thompson, J.P., Bracken, Niehoff and Harwood, JJ., concur.