Opinion
June 17, 1993
Appeal from the Supreme Court, New York County (Richard C. Failla, J.).
In this case, in which New York City detectives traveled to Illinois to question defendant, then on active duty in the Navy, whom they suspected of murder, we defer to the findings of the hearing court, which credited the testimony of all of the witnesses except defendant and found that defendant voluntarily agreed to be interviewed, was fully advised of his Miranda rights, freely and voluntarily gave his statement to the detectives, never invoked his right to counsel, and did not request a telephone call to his mother prior to completion of the interview. Under the standards of People v. Hicks ( 68 N.Y.2d 234) and People v. Yukl ( 25 N.Y.2d 585, 589, cert denied 400 U.S. 851), we find no credible evidence of restraint or other indicia of a custodial interrogation (see generally, People v. Rodney P., 21 N.Y.2d 1, 8, 11). The interview itself was not unduly long and contained periodic breaks, defendant was provided refreshment, the tone of the interviews remained conversational throughout, and defendant's demeanor was calm and relaxed (see, e.g., People v. Yukl, supra, at 587; People v. Bailey, 140 A.D.2d 356; compare, People v. Anderson, 42 N.Y.2d 35).
Moreover, contrary to defendant's argument that Navy personnel were acting as agents of the detectives, the mere fact that the detectives contacted the naval investigators and asked that defendant be brought to a place where they could question him reflects no more than the fact that defendant was on duty on a naval base at the time and is not indicative of any type of joint investigative effort.
In urging that suppression is the appropriate remedy for the alleged violation of his right to counsel, defendant also relies upon the Court of Appeals decision in People v. Harris ( 72 N.Y.2d 614, revd on other grounds 495 U.S. 14, on remand 77 N.Y.2d 434), which held that "statements obtained from an accused following an arrest made in violation of Payton [Payton v. New York, 445 U.S. 573] are not admissible under the State Constitution if they are a product of the illegality." (77 N.Y.2d, supra, at 440.) However, as noted by Justice Failla in his scholarly opinion, in light of defendant's concession that there was no violation of the rule in Payton (the Fourth Amendment prohibition against the police making warrantless and nonconsensual entries into a suspect's home in order to make a routine felony arrest), neither the Court's decision in Harris, nor its rationale, which essentially reiterated the particular significance New York attaches to Payton protections and the importance of deterring their violation, warrant suppressing defendant's statements.
Finally, although the People concede that the detectives deliberately failed to secure an arrest warrant before speaking with defendant in order to avoid triggering his right to counsel, such action does not warrant suppression of his statement (see, People v. Robles, 72 N.Y.2d 689, 695-699).
We have reviewed defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Carro, Wallach, Kupferman and Nardelli, JJ.