| People v Andrango |
| 2013 NY Slip Op 03391 [106 AD3d 461] |
| May 9, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v David Andrango, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel),for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered April12, 2010, convicting defendant, upon his plea of guilty, of murder in the first degree androbbery in the first degree, and sentencing him to an aggregate term of 25 years to life,unanimously affirmed.
The court properly denied defendant's motion to suppress his statements to the policeand to a prosecutor. The record supports the court's finding that when defendant made astatement prior to receiving Miranda warnings, a reasonable innocent person inhis position would not have thought that he was in custody (see People v Yukl,25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Defendant agreed toaccompany the police to the precinct, where he remained in an interview room. Duringthe relatively brief period that preceded Miranda warnings, the police did nothandcuff or restrain defendant or do anything to convey that he was not free to leave, andthe questioning was investigatory rather than accusatory (see e.g. People v Samuel, 92AD3d 466 [1st Dept 2012], lv denied 19 NY3d 867 [2012]; People v Dillhunt, 41 AD3d216, 217 [1st Dept 2007], lv denied 10 NY3d 764 [2008]).
This conclusion is not undermined by a detective's testimony that defendant wouldhave been placed in custody had he declined to go to, or sought to depart from, the policestation. These subjective intentions were never conveyed to defendant. "A policeman'sunarticulated plan has no bearing on the question whether a suspect was 'in custody' at aparticular time; the only relevant inquiry is how a reasonable man in the suspect'sposition would have understood his situation" (Berkemer v McCarty, 468 US420, 442 [1984]; see also Stansbury v California, 511 US 318, 325 [1994];United States v Mendenhall, 446 US 544, 554 n 6 [1980]).
Accordingly, there is no basis for suppression of any of defendant's statements. Inany event, regardless of the admissibility of the pre-Miranda statement, whichwas entirely [*2]exculpatory as to the murder, thepost-Miranda statements were sufficiently attenuated so as to be admissible.
We perceive no basis for a reduction of sentence. Concur—Andrias, J.P.,Saxe, Freedman and Román, JJ.