| People v Rodriguez |
| 2013 NY Slip Op 07350 [111 AD3d 1333] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidRodriguez, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered March 30, 2009. The judgment convicted defendant upon his plea of guilty of,inter alia, course of sexual conduct against a child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of,inter alia, course of sexual conduct against a child in the first degree (Penal Law §130.75 [1] [b]), defendant contends that Supreme Court erred in refusing to suppressstatements that he made in his home to a police investigator who was executing a searchwarrant. We reject that contention. The court properly determined that Mirandawarnings were not required because defendant was not in custody when he made thestatements at issue (see People vWitherspoon, 66 AD3d 1456, 1458 [2009], lv denied 13 NY3d 942[2010]; People v Nunez, 51AD3d 1398, 1400 [2008], lv denied 11 NY3d 792 [2008]; People v Soroka, 28 AD3d1219, 1220 [2006], lv denied 7 NY3d 818 [2006]). Defendant was nothandcuffed or otherwise restrained during the interview or the execution of the searchwarrant, and he was free to move about the apartment (see People v Cerrato, 24NY2d 1, 8 [1969], cert denied 397 US 940 [1970]; People v Lavere, 236AD2d 809, 809 [1997], lv denied 90 NY2d 860 [1997]). Defendant was not toldthat he was under arrest and, indeed, the investigator left the apartment without arrestingdefendant (see Cerrato, 24 NY2d at 8-9; Soroka, 28 AD3d at 1220;Lavere, 236 AD2d at 809). We conclude that, under those circumstances, areasonable person innocent of any wrongdoing would not have believed that he or shewas in custody (see People vPaulman, 5 NY3d 122, 129 [2005]; People v Yukl, 25 NY2d 585, 589[1969], cert denied 400 US 851 [1970]; Lavere, 236 AD2d at 809).Present—Scudder, P.J., Peradotto, Carni, Sconiers and Whalen, JJ.