On appeal, the Appellate Division "conclude[d] that the [suppression] court properly refused to suppress defendant's statements to police in the ambulance and in the hospital based on the court's finding, which is supported by the evidence at the suppression hearing, that defendant was not in custody when he made those statements[.]" People v. Jones, 11 A.D.3d 902, 903, 782 N.Y.S.2d 322, 324 (App. Div. 4th Dept. 2004) (citing, inter alia, People v. O'Hanlon, 5 A.D.3d 1012, 1012, 773 N.Y.S.2d 63 (App. Div. 4th Dept. 2004) ("County Court properly determined that the statement of defendant to the police officer at the hospital prior to his arrest was elicited in the course of the officer's investigation of the accident and was not the product of a custodial interrogation[.]"); People v. Atwood, 2 A.D.3d 1331, 1331-32, 768 N.Y.S.2d 918 (App. Div. 4th Dept. 2003) ("Defendant further contends that the court should have suppressed his statements to the police because some statements were made while he was in custody and before he was advised of his Miranda rights, and other statements were made after an unknowing and involuntary waiver of those rights.
June 23, 2004. Appeal from the 4th Dept: 5 AD3d 1012 (Ontario). Application in criminal case for leave to appeal — Denied. (G.B. Smith, J.)
Specifically, defendant was not in custody at the accident scene when she was placed in the back seat of a patrol car, without handcuffs, and where the brief police questioning was investigatory, not accusatory (seePeople v. Defio , 200 A.D.3d 1672, 1673, 159 N.Y.S.3d 600 [4th Dept. 2021], lv denied 38 N.Y.3d 949, 165 N.Y.S.3d 465, 185 N.E.3d 986 [2022] ; People v. Chess , 162 A.D.3d 1577, 1580-1581, 79 N.Y.S.3d 433 [4th Dept. 2018] ). Defendant agreed to accompany the officer to the police station (seeBell-Scott , 162 A.D.3d at 1559, 78 N.Y.S.3d 846 ), and the evidence at the suppression hearing supports the court's determination that defendant's consent to submit to the blood test was voluntary (seeDefio , 200 A.D.3d at 1673, 159 N.Y.S.3d 600 ; People v. O'Hanlon , 5 A.D.3d 1012, 1012, 773 N.Y.S.2d 633 [4th Dept. 2004], lv denied 3 N.Y.3d 645, 782 N.Y.S.2d 416, 816 N.E.2d 206 [2004]). After having her blood drawn, defendant expressed her willingness to return to the police station, and the record supports the court's determination that she was not in custody when she gave her written statement, without police interrogation (seePeople v. Cordato , 85 A.D.3d 1304, 1309-1310, 924 N.Y.S.2d 649 [3d Dept. 2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ).
17, 2022]; People v Chess, 162 A.D.3d 1577, 1580-1581 [4th Dept 2018]). Defendant agreed to accompany the officer to the police station (see Bell-Scott, 162 A.D.3d at 1559), and the evidence at the suppression hearing supports the court's determination that defendant's consent to submit to the blood test was voluntary (see Defio, 200 A.D.3d at 1673; People v O'Hanlon, 5 A.D.3d 1012, 1012 [4th Dept 2004], lv denied 3 N.Y.3d 645 [2004]). After having her blood drawn, defendant expressed her willingness to return to the police station, and the record supports the court's determination that she was not in custody when she gave her written statement, without police interrogation (see People v Cordato, 85 A.D.3d 1304, 1309-1310 [3d Dept 2011], lv denied 17 N.Y.3d 815 [2011]).
Defendant's admissions and the physical indicia of intoxication, under the facts presented, were elicited pursuant to the common-law right of inquiry, which requires only a founded suspicion that criminal activity was afoot (seePeople v. Hollman , 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992] ; People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ; People v. Karagoz , 143 A.D.3d 912, 913, 39 N.Y.S.3d 217 [2016] ). Thus, defendant's statements were not the product of custodial interrogation and required no Miranda waiver as a predicate to their admissibility (see e.g.People v. Bongiorno , 243 A.D.2d 719, 719, 663 N.Y.S.2d 861 [1997] ; see alsoPeople v. O'Hanlon , 5 A.D.3d 1012, 773 N.Y.S.2d 633 [2004] [and citations therein] ). Certainly, "a reasonable person, innocent of any crime, would not have believed that he was in police custody at a hospital following [an] accident" ( People v. Ragen , 140 A.D.3d 1092, 1092, 33 N.Y.S.3d 739 [2016] ; see alsoPeople v. Jones , 11 A.D.3d 902, 903-904, 782 N.Y.S.2d 322 [2004] ), and, under the circumstances, the investigatory questions were no less permissible than had they been posed at an accident scene.
A.D.3d 1351, 1352, 999 N.Y.S.2d 647, lv. denied 25 N.Y.3d 1077, 12 N.Y.S.3d 628, 34 N.E.3d 379; People v. Gore, 117 A.D.3d 845, 846, 986 N.Y.S.2d 170, lv. denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348). “In determining whether a defendant was in custody for Miranda purposes, ‘[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. Kelley, 91 A.D.3d 1318, 1318, 937 N.Y.S.2d 514, lv. denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213, quoting People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89). Here, defendant was not restrained in any way by the police while at the hospital, and the questioning by the deputy was investigatory and not accusatory in nature (see People v. Drouin, 115 A.D.3d 1153, 1155–1156, 982 N.Y.S.2d 226, lv. denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282; People v. O'Hanlon, 5 A.D.3d 1012, 1012, 773 N.Y.S.2d 633, lv. denied 3 N.Y.3d 645, 782 N.Y.S.2d 416, 816 N.E.2d 206; People v. Ripic, 182 A.D.2d 226, 231–232, 587 N.Y.S.2d 776, appeal dismissed 81 N.Y.2d 776, 594 N.Y.S.2d 712, 610 N.E.2d 385).Inasmuch as it is common knowledge that the police prepare reports with respect to motor vehicle accidents even where no criminal conduct is suspected, we conclude that a reasonable, innocent person in defendant's position at the hospital would not have felt that he or she was in custody when asked questions about the accident by the deputy (see generally People v. Borukhova, 89 A.D.3d 194, 212–213, 931 N.Y.S.2d 349, lv. denied 18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128, reconsideration denied 18 N.Y.3d 955, 944 N.Y.S.2d 484, 967 N.E.2d 709).
Defendant's contention that the verdict is against the weight of the evidence “is raised for the first time in [her] reply brief and therefore is not properly before us” ( People v. Sponburgh, 61 A.D.3d 1415, 1416, 877 N.Y.S.2d 585,lv. denied12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092). Contrary to the further contention of defendant, we conclude that County Court did not err in refusing to suppress her statements to the police. Defendant was not in police custody when the police initially questioned her at the hospital and, in any event, we conclude that the questions were investigatory rather than accusatory in nature ( see People v. Prue, 8 A.D.3d 894, 897, 779 N.Y.S.2d 271,lv. denied3 N.Y.3d 680, 784 N.Y.S.2d 18, 817 N.E.2d 836;People v. O'Hanlon, 5 A.D.3d 1012, 1012, 773 N.Y.S.2d 633,lv. denied3 N.Y.3d 645, 782 N.Y.S.2d 416, 816 N.E.2d 206;People v. Bongiorno, 243 A.D.2d 719, 720, 663 N.Y.S.2d 861,lv. denied91 N.Y.2d 889, 669 N.Y.S.2d 3, 691 N.E.2d 1029;People v. Bowen, 229 A.D.2d 954, 955, 645 N.Y.S.2d 381,lv. denied88 N.Y.2d 1019, 651 N.Y.S.2d 18, 673 N.E.2d 1245). We further conclude that “the record of the suppression hearing establishes that [defendant] was not [impaired by drugs] to such a degree that [s]he was incapable of voluntarily, knowingly, and intelligently waiving [her] Miranda rights” ( People v. Cimino, 49 A.D.3d 1155, 1157, 856 N.Y.S.2d 368,lv. denied10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 [internal quotation marks omitted]; see People v. Downey, 254 A.D.2d 794, 679 N.Y.S.2d 762,lv. denied92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451). Contrary to defendant's contention, the People met their burden of proof at the suppression hearing through the testimony of the two investigating officers who elicited the challenged statements, and the
Finally, we reject the contention of defendant that the court erred in refusing to suppress her statements made to the Sheriff's deputies. The record supports the court's determination that the statements were not the product of custodial interrogation but, rather, were made in response to investigatory questioning before she was advised of her Miranda rights and waived them ( see People v O'Hanlon, 5 AD3d 1012, lv denied 3 NY3d 645).
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of driving while intoxicated as a class D felony (Vehicle and Traffic Law § 1192, [3]; § 1193 [1] [c] [ii]), aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3] [a]) and unauthorized use of a vehicle in the third degree (Penal Law § 165.05). Contrary to the contention of defendant, the evidence at the suppression hearing is sufficient to establish that his arrest was supported by probable cause ( see People v. O'Hanlon, 5 AD3d 1012, lv denied 3 NY3d 645; People v. Tittensor, 244 AD2d 784). County Court properly admitted in evidence recordings of the 13 calls to 911 made by defendant prior to his arrest ( see People v. Knight, 280 AD2d 937, 938-939, lv denied 96 NY2d 864). The court properly denied the request of defendant for a missing witness charge with respect to one of the passengers in the vehicle because there is no indication that the passenger was under the People's control ( see People v. Farrow, 159 AD2d 376, lv denied 76 NY2d 787).
We conclude that the court properly refused to suppress defendant's statements to police in the ambulance and in the hospital based on the court's finding, which is supported by the evidence at the suppression hearing, that defendant was not in custody when he made those statements ( see People v. O'Hanlon, 5 AD3d 1012; People v. Atwood, 2 AD3d 1331, 1331-1332; People v. Brown, 295 AD2d 442, 443, lv denied 99 NY2d 580; see also People v. Panek, 305 AD2d 1098, 1098-1099, lv denied 100 NY2d 623; People v. Bongiorno, 243 AD2d 719, 719-720, lv denied 91 NY2d 889; People v. Bowen, 229 AD2d 954, 955, lv denied 88 NY2d 1019). We reject the further contention of defendant that reversal is required as a result of the admission of testimony of his treating physicians.