| People v Nikac |
| 2022 NY Slip Op 00436 [201 AD3d 955] |
| January 26, 2022 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dijela Nikac, Appellant. |
Andrew E. MacAskill, Garden City, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Monica M.C. Leiter and Autumn S.Hughes of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F.Gugerty, J.), rendered June 9, 2017, convicting her of grand larceny in the third degree, upon herplea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearingpursuant to a stipulation in lieu of motions (Howard E. Sturim, J.), of the suppression of herstatements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant argues that the police officers who arrested her did not have probable cause.As the defendant did not seek a ruling in the Supreme Court as to whether the officers hadprobable cause for her arrest, this contention is unpreserved for appellate review (seeCPL 470.05 [2]; People v Bigelow,68 AD3d 1127, 1128 [2009]; People v High, 18 AD3d 775 [2005]). In any event, the evidenceelicited at the suppression hearing established that the officers had probable cause (see People v Smith, 174 AD3d655, 657 [2019]).
The Supreme Court properly denied suppression of the defendant's statements to lawenforcement officials. "Miranda warnings need not be given until both the elements ofpolice 'custody' and 'interrogation' are present" (People v Reardon, 124 AD3d 681, 683 [2015]; see Miranda vArizona, 384 US 436 [1966]). "The standard for assessing a suspect's custodial status iswhether a reasonable person innocent of any wrongdoing would have believed that he or she wasnot free to leave" (People vPaulman, 5 NY3d 122, 129 [2005]). "The issue of whether a suspect is in custody isgenerally a question of fact that does not turn on the subjective intent of the police, or thesubjective beliefs of the defendant" (People v Santjer, 190 AD3d 983, 984 [2021] [citation omitted]).The factors to be weighed include the amount of time which the defendant spent with the police,the manner, if any, in which his or her freedom was restricted, the location and atmosphere of hisor her questioning, the degree of cooperation which he or she exhibited, whether he or she wasapprised of his or her constitutional rights, and whether the questioning was investigatory oraccusatory in nature (see People vBrown, 177 AD3d 763, 765 [2019]).
Here, the hearing testimony established that the police officers, with the defendant'spermission, entered the defendant's home and engaged in a brief 15-minute conversation. The[*2]questioning of a defendant in his or her own home by policeofficers is not, without more, sufficient to conclude that the interrogation was custodial (seePeople v Paulin, 25 NY2d 445, 449 [1969]). In addition, the testimony established that thedefendant was cooperative and was free to ask the police officers to leave at any time. Thus, theevidence at the suppression hearing supported the Supreme Court's conclusion that the defendantwas not in custody when she voluntarily answered the officers' questions at her home (see People v Leta, 151 AD3d1761, 1762 [2017]; People v Claudio, 85 AD2d 245, 261 [1982]). Connolly, J.P.,Hinds-Radix, Miller and Genovesi, JJ., concur.