Opinion
April 3, 1987
Appeal from the Supreme Court, Cattaraugus County, Kelly, J.
Present — Dillon, P.J., Callahan, Doerr, Green and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment of conviction for burglary in the third degree, defendant argues that his motion to suppress statements made to the police, and evidence seized by them, should have been granted because he was detained in custody without probable cause at the time the statements were made and the evidence was seized (see, Dunaway v New York, 442 U.S. 200). There is no merit to this claim because it cannot be said that the hearing court's conclusion that defendant was not in custody was erroneous as a matter of law (see, People v Waymer, 53 N.Y.2d 1053, 1054; People v Yukl, 25 N.Y.2d 585, 588, cert denied 400 U.S. 851; People v Schwartz, 106 A.D.2d 896). We have considered the other claims raised by defendant and find each one lacking in merit.