Opinion
May 28, 1993
Appeal from the Wayne County Court, Parenti, J.
Present — Denman, P.J., Green, Balio, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that his statement to the police was the product of custodial interrogation. We disagree. Whether a defendant is in custody is generally a question of fact to be determined by the suppression court (see, People v Waymer, 53 N.Y.2d 1053, 1054; People v Grimes, 162 A.D.2d 1031, lv denied 76 N.Y.2d 893) and its determination should not be disturbed unless it is erroneous as a matter of law or unsupported by the record (see, People v Prochilo, 41 N.Y.2d 759, 761; People v McIntyre, 138 A.D.2d 634, lv denied 72 N.Y.2d 959). The fact that defendant was driven to the District Attorney's office in a police car and questioned in the Grand Jury room is not dispositive (see, People v Wilbert, 192 A.D.2d 1109; People v Oates, 104 A.D.2d 907). Defendant was told that he was not under arrest and was free to leave at any time, and in fact was taken home after he made his statement. Under the circumstances, a reasonable person, innocent of any crime, would not have believed that he was in custody or that his freedom was significantly impaired (see, People v Yukl, 25 N.Y.2d 585, rearg denied 26 N.Y.2d 883, cert denied 400 U.S. 851).
Defendant contends that he was entitled to a Wade hearing because the People served notice that they would introduce evidence of a pretrial identification by the victim and her mother. County Court properly determined that the pretrial photographic identification was confirmatory in nature and that a hearing was not necessary. Where the evidence establishes that the parties were previously known to one another, the suggestiveness of the photographic identification is not a concern and CPL 710.30 does not come into play (see, People v Rodriguez, 79 N.Y.2d 445, 449; People v Gissendanner, 48 N.Y.2d 543, 552; see also, People v Tas, 51 N.Y.2d 915). Here, unlike the situation in People v Rodriguez (supra), relied on by defendant, defendant admitted that he knew the victim's mother and had been in the victim's apartment on three or four occasions, thus establishing that they were acquainted (see, People v Collins, 60 N.Y.2d 214).