Defendant stands accused of Assault in the Third Degree; Endangering the Welfare of a Child; and Harassment in the Second Degree.

A hearing was held to determine the admissibility of statements made by the defendant to a police officer. The hearing was held in Part HP-1 before a JHO on February 8, 2008. The JHO found, as I do, the testimony of Police Officer Thomas Barberio credible. The JHO recommended that the defendant's motion to suppress statements be denied because Officer Barberio was engaged in an investigation to determine the facts and the defendant was not in custody at the time he made the statements. I accept, after reading the hearing minutes, the findings of fact but modifies the conclusions of law and grants the defendant's motion to suppress for the following reasons.

Officer Barberio responded on November 10, 2007 at about 1:06 p.m. with his partner, Officer Sadler, to a radio call for a family dispute involving a knife. They went to the defendant's apartment on the second floor. When he entered the apartment he saw Mhammed Chaaibi, the defendant, on top of his daughter, Soukaina, the complainant. The defendant was holding her hair in his hand and smashing her head into the wall. The force of the assault, according to Officer Barberio, left a "significant indentation in the sheet rock." Officer Barberio separated the two by grabbing the defendant by the shoulder and pulling him off the complainant who was restrained by Officer Sadler and other responding officers. The officers learned promptly that a [*2]knife was not involved: the complainant told the officers when asked that no knife was involved and the defendant made no reference to a knife. At that point Officer Barberio asked the defendant why he was smashing his daughter's head into the wall. The defendant responded: "I had to, I can't control her, she always talks back.." Officer Barberio then overheard the complainant tell his partner "Look at my neck, look at my neck." Officer Barberio saw redness about the front of her neck. She explained further: her father (the defendant) grabbed her by her neck and pushed her against the wall before the officers arrived. Officer Barberio then returned to the defendant and asked him how did the complainant get the redness on her neck. The defendant said he grabbed her by the neck. Officer Barberio then asked why had he grabbed her by the neck. The defendant replied: "She speaks back and it's the only way I can control her. I cannot handle her, I do not want her here anymore." At that point Officer Barberio arrested the defendant because he did not feel that the situation could be de-escalated and he was uncomfortable with leaving both parties in the house. Officer Barberio explained his purpose in asking the defendant questions was "...to clear up exactly what happened."

The issue is whether the defendant was in custody when questioned by Officer Barberio. It is undisputed that Officer Barberio did not read the defendant the Miranda warnings before questioning him. Miranda warnings are required whenever a person is subjected to custodial interrogation. Miranda v. Arizona, 384 US 436 (1966). Whether a person is in custody is generally a question of fact. The standard to be applied is what a reasonable person, innocent of any crime, would have thought had (s)he been in the defendant's position when questioned by Officer Barberio. People v. Yukl, 25 NY2d 585 (1969). The factors to be considered to determine whether a person is in custody include 1) the amount of time spent with the police; 2) whether the person's freedom of action was restricted; 3) the location and atmosphere under which the questioning occurred; 4) the degree of cooperation exhibited; 5) whether constitutional rights were administered; and 6) whether the questioning was investigatory or accusatory in nature. People v. Arcese, 148 AD2d 460 (2d Dept) lv denied 74 NY2d 661 (1989); People v. King, 222 AD2d 699 (2d Dept 1995); People v. Macklin, 202 AD2d 445 (2d Dept) lv denied 83 NY2d 912 (1994); People v. Kassim, 5 Misc 3d 1026(A) (Sup Ct, Kings County 2004), People v. Zacher, 9 Misc 3d 1121(A) (Sup Ct, Monroe County, 2005).

Officer Barberio saw the defendant assault his daughter when he and other officers entered the defendant's apartment. I find probable cause existed at that moment for Officer Barberio to arrest the defendant for assaulting the complainant. Officer Barberio, his partner and other officers moved quickly to separate the defendant from his daughter. Officer Barberio physically restrained the defendant so that the defendant would have no physical contact with the complainant. Here, while the period of time the officers were with the defendant in his apartment was relatively short, the atmosphere in the defendant's apartment was coercive although no officer drew his weapon, he appeared cooperative and was not informed of his right against self-incrimination. The restriction on his freedom of movement before his arrest was brief, but he was not handcuffed. However, the nature of Officer Barberio's questioning was clearly accusatory. Officer Barberio did not ask the defendant what happened, instead he asked the defendant why he was assaulting the complainant. The defendant was questioned after Officer Barberio determined that a knife was not involved in the assault. No other clarifying questions to better understand the nature of the events either witnessed by Officer Barberio or those events that preceded his arrival were asked before Officer Barberio questioned the defendant as to why he [*3]was smashing his daughter's head into the wall. Therefore, I conclude that Officer Barberio's questions of the defendant while in a police-dominated atmosphere were designed to elicit inculpatory responses, certainly not to clarify on ongoing or developing situation before the police could take further action (id.). Accordingly, I find that any reasonable person, innocent of any crime, placed in the defendant's situation could not have concluded that he was not in custody when Officer Barberio asked the defendant his reason for assaulting his daughter.

The fact that Officer Barberio, after learning from the complainant that the defendant's attack upon her began before Officer Barberio's arrival, sought clarifying details of those events from the defendant does not change the character of his questions from accusatory to investigatory. Moreover, the fact that Officer Barberio entertained, for a short period of time, the notion that because the incident involved family members he might not arrest the defendant does not transform a custodial interrogation into a brief detention that does not require Miranda warnings.^[FN1] Assessing the emotional state of an assailant and victim in these circumstances is, of course, an important factor to weigh in the exercise of police discretion to arrest, but does not alter the conclusion that the defendant was in police custody at that time. The fact that Officer Barberio was subjectively weighing the competing alternative to arresting the defendant does not change the custodial nature of the interrogation and is no different than the subjective belief of an interrogator that a person is not in custody, People v. Kassim, 5 Misc 3d 1026(A) (Sup Ct, Kings County 2004), or different than the subjective belief of a defendant. People v. Newson, 68 AD2d 377, (2d Dept 1979). In the end, the standard for determining whether a defendant is in custody is whether a reasonable person, innocent of any wrongdoing, would believe that he was in custody under the circumstances. People v. Yukl, 25 NY2d 585 (1969).

Inasmuch as the defendant was in police custody when he was questioned by Officer Barberio and Officer Barberio did not inform the defendant of Miranda warnings before questioning him, the statements made by the defendant to Officer Barberio must be suppressed.

The foregoing constitutes the decision and order of the Court.

Dated:April 9, 2008

Queens County, New York

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Gene R. Lopez, J.C.C.