Opinion
April 9, 1990
Appeal from the County Court, Suffolk County (Seidell, J.).
Ordered that the judgment is affirmed.
The defendant made several statements to the police and to a fellow inmate. Because all of these statements were properly received in evidence, we now affirm.
Questions of whether a defendant is within the custody of the police are "to be resolved by the application of the objective standard of whether a reasonable person in the defendant's position, innocent of any crime, would have believed he was free to leave the presence of the police" (People v. Bailey, 140 A.D.2d 356, 358; see also, People v. McIntyre, 138 A.D.2d 634; People v Oates, 104 A.D.2d 907). "[W]hether a particular interrogation is custodial is largely a question of fact and the hearing court's findings should not be disturbed unless they are against the weight of the evidence" (People v. McIntyre, supra, at 636; see also, People v. Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851; People v. Putland, 105 A.D.2d 199; People v. Oates, supra).
In this case, the evidence is clear that the defendant was not in custody when he initially made an inculpatory statement to the police. It is also clear that his first statement was voluntary (see, People v. Tarsia, 50 N.Y.2d 1, 11; People v. Peters, 157 A.D.2d 806; People v. Donson, 147 A.D.2d 815; People v. Jackson, 143 A.D.2d 471; People v. Hoyer, 140 A.D.2d 853; People v. Vaughn, 134 A.D.2d 789). Based upon this statement, the police had probable cause to arrest the defendant (see generally, People v. Mercado, 68 N.Y.2d 874, cert denied 479 U.S. 1095; People v. Landy, 59 N.Y.2d 369; People v. McRay, 51 N.Y.2d 594). Thus, the defendant's subsequent confessions to the police, which also were voluntary and preceded by Miranda warnings, were not the result of an illegal arrest and were properly received in evidence.
Further, there is no evidence to support the defendant's contention that his statements to the inmate should have been suppressed on the ground that the inmate was acting as an agent for the police. Thus, these statements also were properly received in evidence (see, People v. Blake, 127 A.D.2d 602; People v Ross, 122 A.D.2d 538; People v. Johnson, 122 A.D.2d 76; People v. Graham, 120 A.D.2d 674).
While it was error to charge depraved indifference murder and intentional murder in the conjunctive rather than in the alternative (see, People v. Gallagher, 69 N.Y.2d 525) the error is not preserved for appellate review as a matter of law and we decline to reverse in the interest of justice because of the overwhelming evidence of the defendant's guilt.
We have considered the defendant's remaining contentions and find that they are unpreserved for appellate review or without merit. Brown, J.P., Rubin, Sullivan and Harwood, JJ., concur.