Opinion
March 11, 1994
Appeal from the Supreme Court, Monroe County, Wesley, J.
Present — Denman, P.J., Balio, Lawton, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from his conviction of assault in the third degree, bringing up for review a pretrial order denying his motion to suppress his statements to police. Defendant's sole contention is that the statements were involuntarily obtained by means of a promise. We disagree.
A statement is not involuntary unless defendant's will has been overborne so that the statement was not the product of essentially free and unconstrained choice (see, Arizona v Fulminante, 499 U.S. 279; Colorado v. Connelly, 479 U.S. 157; Schneckloth v. Bustamonte, 412 U.S. 218; People v. Anderson, 42 N.Y.2d 35). The mere making of a promise, "`however slight'" (Bram v. United States, 168 U.S. 532, 543), will not automatically invalidate a confession (see, People v. Fox, 120 A.D.2d 949, lv denied 68 N.Y.2d 812 [promise to obtain psychological help for defendant]; People v. Diaz, 77 A.D.2d 523, affd 54 N.Y.2d 967, cert denied 455 U.S. 957 [statements that defendant, by confessing, would "help" himself]; United States v. Reed, 572 F.2d 412, 426, cert denied sub nom. Goldsmith v. United States, 439 U.S. 913 [promise to recommend reasonable or reduced bail]; United States v. Cone, 354 F.2d 119, 122, cert denied 384 U.S. 1023 [promise to bring cooperation to attention of U.S. attorney]). The determination whether a confession has been coerced depends upon the totality of the circumstances (see, Schneckloth v. Bustamonte, supra, at 226; People v. Anderson, supra, at 38).
Here, the fact that defendant's confession was preceded by the officer's assurance that defendant would not be arrested "at this time" did not render the circumstances inherently coercive or overbearing. By a prearranged meeting, defendant voluntarily accompanied the officer to the Public Safety Building. The circumstances of the interview were noncustodial and nonthreatening. Despite the fact that defendant was not in custody, he was informed of his Miranda rights and waived them. The interview lasted less than an hour and a half, and defendant was driven home as promised. Under the totality of the circumstances, defendant's will was not overborne and the statement was not coerced. People v. Hilliard ( 117 A.D.2d 969), relied upon by defendant, is distinguishable. The rule is that an inducement is impermissible if it constitutes a "promise of an alternative to criminal prosecution or incarceration" (People v Fox, supra, at 949, citing People v. Bay, 76 A.D.2d 592). Unlike the promise in Hilliard, the promise made to defendant did not imply that he would receive lenient treatment or not be prosecuted, only that he would not be arrested "at this time".
We further conclude that the assurance that defendant would not be arrested "at this time" did not create "a substantial risk that the defendant [might] falsely incriminate himself" (People v. Fox, supra, at 949; cf., People v. Engert, 202 A.D.2d 1023 [decided herewith]; People v. Taber, 115 A.D.2d 126, 127-128, lv denied 67 N.Y.2d 657; People v. Giangrasso, 109 A.D.2d 750).