Opinion
January 15, 1987
Appeal from the County Court of Albany County (Harris, J.).
In support of his argument that County Court erred in denying his motion to suppress oral and written statements, defendant claims that the testimony of the investigating officer contained discrepancies, inconsistencies and omissions, and that the People therefore failed to carry their burden of proof beyond a reasonable doubt. The alleged defects in the officer's testimony created an issue of credibility. Such an issue is primarily for the hearing court and its findings should not be disturbed unless clearly erroneous (People v. Williams, 118 A.D.2d 672, 673; see, People v. Prochilo, 41 N.Y.2d 759, 761; People v. Putland, 105 A.D.2d 199, 206).
The officer's testimony was neither incredible as a matter of law nor patently tailored to avoid constitutional objections (see, People v. Henriquez, 116 A.D.2d 589). County Court's finding that defendant voluntarily accompanied the police to the station and that he was free to leave at any time before making the oral admission is supported by the evidence (see, People v Rhodes, 111 A.D.2d 194; People v. Folnsbee, 96 A.D.2d 623). Under the objective test for determining whether a defendant is in custody (see, People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851), we see no error in County Court's refusal to suppress defendant's oral statement made prior to his arrest and before he received the Miranda warnings (see, Oregon v Mathiason, 429 U.S. 492). That defendant was the focus of an investigation at the time he was questioned and was interrogated at a police station does not necessarily render the interrogation custodial (see, People v. Scott, 116 A.D.2d 755; see also, People v. Baird, 111 A.D.2d 1044, 1045). Even if we were to find that defendant was in custody prior to his arrest, the failure to give Miranda warnings at that time would not necessarily taint defendant's subsequent written statement given after his arrest and after he had been informed of the Miranda rights (see, People v. Tirado, 117 A.D.2d 874, 876).
We next find no abuse of discretion in County Court's Sandoval ruling (see, People v. Pavao, 59 N.Y.2d 282, 292; People v. Banks, 101 A.D.2d 928, 929). Lastly, reversal is not required due to alleged prosecutorial misconduct in the cross-examination of defendant (see, People v. Demming, 116 A.D.2d 886, 887) or in the summation (see, People v. Lum, 102 A.D.2d 992). The judgment of conviction should be affirmed.
Judgment affirmed. Main, J.P., Casey, Yesawich, Jr., Levine and Harvey, JJ., concur.