| People v Small |
| 2023 NY Slip Op 00111 [212 AD3d 655] |
| January 11, 2023 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Damien R. Small, Appellant. |
Patricia Pazner, New York, NY (Anders Nelson of counsel; Carsyn Costello andRisa Lake on the brief), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, ChristopherBlira-Koessler, and Felicia Thomas of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kenneth C. Holder, J.), rendered December 4, 2019, convicting him of criminalpossession of a weapon in the second degree, criminal possession of a weapon in thethird degree, and operating a motor vehicle while under the influence of alcohol, upon ajury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppress hisstatements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant contends that the Supreme Court should have suppressed hisstatements to law enforcement officials as the product of custodial interrogationconducted without the benefit of Miranda warnings (see Miranda vArizona, 384 US 436 [1966]). "The Miranda rule protects the privilegeagainst self-incrimination and, because the privilege applies only when an accused iscompelled to testify, the safeguards required by Miranda are not triggered unlessa suspect is subject to custodial interrogation" (People v Paulman, 5 NY3d 122, 129 [2005] [internalquotation marks omitted]; People v Berg, 92 NY2d 701, 704 [1999]). "Thestandard for assessing a suspect's custodial status is whether a reasonable person innocentof any wrongdoing would have believed that he or she was not free to leave" (Peoplev Paulman, 5 NY3d at 129; see People v Harris, 48 NY2d 208, 215 [1979])."The factors to be weighed include the amount of time which the defendant spent withthe police, the manner, if any, in which his or her freedom was restricted, the locationand atmosphere of [the] questioning, the degree of cooperation which he or sheexhibited, whether he or she was apprised of his or her constitutional rights, and whetherthe questioning was investigatory or accusatory in nature" (People v Nikac, 201 AD3d955, 956 [2022]).
Here, the hearing evidence established that the defendant was sitting inside hisvehicle when he made the subject statements in response to investigatory questions askedby a police officer who was responding to a report of a motor vehicle accident. Under thecircumstances, the Supreme Court properly found that the defendant was not in custodywhen the challenged statements were made (see People v Gore, 117 AD3d 845 [2014]; People vJohnson, 173 AD2d 852 [1991]).
[*2] Thedefendant's contention that the manner in which the Supreme Court conducted juryselection violated CPL 270.15 (3) is unpreserved for appellate review (see CPL470.05 [2]; People v Agramonte, 87 NY2d 765 [1996]). In any event, the recorddoes not demonstrate that the statutory procedures for jury selection were violated.Iannacci, J.P., Miller, Dowling and Voutsinas, JJ., concur.