On July 5, 2018 and August 7, 2018, the court conducted a Huntley hearing in this action. At the hearing, the People called as witnesses, New York Police Department Officer Bekim Nebija and Mount Vernon Police Department Officer Curtis Subryan. The defendant called no witnesses. For the reasons set forth in this decision, the court finds that the People have met their burden of proving beyond a reasonable doubt that the defendant’s statements were voluntarily made. (People v. Thomas, 22 NY3d 629, 641 [2014]; People v. Huntley, 15 NY2d 72, 78 [1965]; People v. Velez, 211 AD2d 524, 524 [1st Dept 1995].)NYPD Officer Nebija testified that on September 30, 2017 he received information regarding an allegation of a sexual assault. He testified that both he and his partner proceeded to 340 East 184th Street in the County of the Bronx and State of New York. At the subject location, Officer Nebija testified that they were invited into the victim’s residence and spoke with individuals inside the home, which included the mother of the victim, the victim and the defendant. The victim’s mother informed the officers that her boyfriend, the defendant, raped her daughter. Officer Nebija testified that he spoke to the defendant in a bedroom, while his partner spoke to the victim in a separate room. Officer Nebija further testified that he asked the defendant what happened between him and his girlfriend’s daughter, and the defendant told him that while he was performing a religious ritual at a premises in the City of Mount Vernon, County of Westchester, the two drank wine and Hennessy, and they got “touchy feely”. The defendant further admitted to Officer Nebija that after drinking with the victim, they both fell asleep until he was awoken with his pants down, and then proceeded to have sexual intercourse with the victim for approximately thirty seconds before she told him to stop. The victim also informed the officers that the defendant sexually assaulted her. Officer Nebija then placed the defendant under arrest. While being placed under arrest, the defendant allegedly told Officer Nebija that he wished he would have recorded the victim while they were having intercourse which would have demonstrated that she was enjoying it. There is no dispute that Miranda warnings were never read to the defendant while inside the subject premises. Defendant now seeks the suppression of the statements made before and after his arrest as a result of the failure of Officer Nebija’s failure to read him his Miranda warnings.Since this alleged crime occurred in Westchester County, the defendant was taken into custody and transported to a local precinct in the Bronx where he remained until the following day when he was picked up by members of the Mount Vernon Police Department. Mount Vernon Police Officer Curtis Subryan testified that in the early afternoon of October 1, 2017, he along with a fellow officer interviewed the defendant in a room at the Mount Vernon Police Department Headquarters. The interrogation of the defendant was videotaped. A copy of the recorded interview was introduced into evidence. Also submitted into evidence was the written Miranda Warnings sheet that was signed by the defendant before answering the questions of Officer Subryan. Counsel for the defendant argues that the videotaped confession should be suppressed because the defendant was confused prior to the interrogation after having been held in custody over 24 hours without any food, which likely resulted in him involuntarily signing the written waiver. This allegation of food deprivation was not supported by any evidence at this hearing.It is well settled that when an individual is taken into custody, the Fifth Amendment requires the police to administer Miranda warnings. (Miranda v. Arizona, 384 US 436 [1966].) “In deciding whether a defendant was in custody prior to receiving his [Miranda] warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position.” (People v. Yukl, 25 NY2d 585, 589 [1969].) The factors to be considered include the amount of time the individual spent with the police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (See People v. Macklin, 202 AD2d 445, 46 [2nd Dept. 1994], lv denied 83 NY2d 912 [1994]).Defendant bears the burden of establishing that he was in custody so as to require the administration of Miranda warnings prior to questioning (People v. Brown, 24 Misc 3d 892 [Sup Ct, NY County 2009]; People v. Colon, 5 Misc 3d 365 [Sup Ct, NY County 2004]). Here, defendant was not in custody when he provided the initial statements to Officer Nebija at his home. He was not restrained or handcuffed. The officer’s questions were investigatory in nature, and in a nonthreatening manner for less than thirty minutes before Officer Nebija announced an arrest. Consequently, a reasonable person innocent of any wrongdoing would have believed that he or she was free to leave the presence of the police (see People v. Yukl, 25 NY2d 585, 589 [1969]; People v. Borukhova, 89 AD3d 194, 212-213 [2011]). As such, this court finds that defendant has failed to meet his burden by eliciting testimony from Officer Nebija to demonstrate that he was in custody at the time he made the statements prior to his arrest. Additionally, the defendant’s statement made immediately after his arrest to Officer Nebija, that he should have recorded the victim when she made a provocative statement while they were having sex, was spontaneous and not prompted by questions. Therefore Miranda warnings were not required, and that statement was, lawfully obtained (see People v. Williams, 97 AD3d 769 [2nd Dept. 2012]). The court further finds that there was no testimony which would indicate that the statements were coerced or involuntarily made.Accordingly, the statements made at the scene of the call were voluntarily given and lawfully obtained. Thus, the defendant’s motion to suppress statements made in the Bronx, is denied.There is also no merit to the defendant’s contention that his videotaped statements to the police in Mount Vernon were involuntary. The totality of the circumstances surrounding the defendant’s interrogation at the Mount Vernon Police Headquarters supports the conclusion that the defendant’s videotaped statements were voluntarily made. The defendant was advised of, and knowingly and intelligently waived his Miranda rights (see, People v. Williams, 62 NY2d 285, 287 [1984]). In addition, defendant seemed alert and relaxed in the video and did not appear nervous or intimidated.Moreover, contrary to defendant’s contentions, the amount of time defendant spent in custody prior to making his videotaped statement does not warrant a conclusion that such statement was involuntary (see, People v. Dairsaw, 46 NY2d 739 [1978].Lastly, defendant waived exclusion of evidence at trial, based on lack of pretrial notice from the prosecution of his unnoticed statements to the police in the Bronx. When the People intend to offer statements made by a defendant at trial, they must provide a notice of intent to the defendant specifying the “sum and substance” of the statements (see CPL 710.30). However, the notice requirement is excused when a defendant moves for the suppression of the statements (see CPL 710.30 [3]; People v. Merrill, 87 NY2d 948 [1996]; People v. Lopez, 84 NY2d 425, 428 [1994]). Since defendant moved to suppress the statements at issue, and received a full hearing on their admissibility, it is irrelevant that the CPL 710.30 notice served by the People failed to allege the “sum and substance” of all of the statements they intended to introduce at trial. An application to suppress a statement waives any preclusion argument (see People v. Kirkland, 89 NY2d 903, 904 [1996]; People v. Velazquez, 33 AD3d 352, 354 [2006]). This court finds that the unnoticed statements of the defendant elicited at the hearing put the defense on notice of the People’s intention to use them, and the defense received a full opportunity to challenge the voluntariness of the statements on cross-examination at the suppression hearing (see People v. Schnugg, 257 AD2d 669 [2d Dept. 1999]; People v. Tuthill, 24 Misc 3d 46 [App. Term 9th & 10th Dists. 2009]; People v. Sydlar, 106 AD3d 1368 [3d Dept. 2013]). The defendant’s motion to preclude those statements based on the People’s failure to provide timely notice under CPL 710.30 (1)(a) is accordingly denied.Accordingly the defendant’s motion to suppress his statements made to law enforcement is denied in its entirety.This constitutes the Decision and Order of this Court.Dated: September 6, 2018Mount Vernon, New York
