Opinion
October 20, 1986
Appeal from the Supreme Court, Richmond County (Kuffner, J.).
Ordered that the judgment is affirmed.
The statement of a voluntarily intoxicated individual is admissible where a totality of the circumstances show that he was capable of intelligently waiving his Miranda rights (see, People v Nolan, 75 A.D.2d 828). The mere fact that the defendant was intoxicated at the time he made his statement to police would not, without more, preclude the introduction of that statement against him. In order for such a statement to be deemed inadmissible a defendant must be so intoxicated that he is unable to comprehend the meaning of his statements (see, People v Schompert, 19 N.Y.2d 300, cert denied 389 U.S. 874).
In the instant case the evidence presented establishes that the defendant was responsive when read his Miranda rights. The fact that he nodded his head affirmatively after each right was read to him and then verbally agreed to speak with police indicated that he fully understood his rights (see, North Carolina v Butler, 441 U.S. 369). Moreover, his comments to police concerning his condition and concerns following the car accident also support a finding that he voluntarily waived his rights.
In any event, the statements in question were not elicited through a custodial interrogation or improper police conduct. In fact, the defendant's statement was a spontaneous comment made after a police officer responded to a question posed to him by defendant. Accordingly, the defendant's statement was properly admitted (see, People v Bell, 63 N.Y.2d 796).
Further, although a defendant may raise a right to counsel claim for the first time on appeal (see, People v Cullen, 50 N.Y.2d 168; People v Samuels, 49 N.Y.2d 218), a sufficient factual record must be developed in order for such a claim to be reviewable (see, People v Kinchen, 60 N.Y.2d 772; People v Donovon, 107 A.D.2d 433). In the case at bar, there is no proof on the record that the police had any knowledge of any pending charges or recent arrest (see, People v Sepe, 108 A.D.2d 941). Under the circumstances, the court properly denied that branch of the defendant's motion which was to suppress his statements to the police and that decision will not be disturbed on appeal.
Finally, the defendant's criminal record which includes three previous felony convictions more than satisfies the requirements for a persistent felony offender (see, Penal Law 70.10 [a]) and the defendant was properly sentenced as such (see, e.g., People v Drummond, 104 A.D.2d 825; People v Oliver, 96 A.D.2d 1104). Mollen, P.J., Thompson, Eiber and Spatt, JJ., concur.