The Defendant is charged with Aggravated Harassment in the Second Degree, pursuant to Penal Law § 240.30(1).

On April 30, 2008 the People timely served upon the Defendant their notice of statements allegedly made by the Defendant to a public servant which the People intend to introduce at trial on their direct case, in accordance with CPL § 710.30. According to this notice, on April 30, 2008 at 12:10 a.m., at the First Precinct, the Defendant stated, "I kept calling Jorge's cell phone because I wanted to tell him to talk to me man to man[,]" and "Even though I said to him that I was going to wipe him off the map, I didn't mean I was going to kill him." In response to this notice the Defendant moved, inter alia, to suppress these statements. The motion was thereafter withdrawn upon the People's consent to a hearing involving the voluntariness of these statements, whether they were the result of custodial interrogation and whether the statements were elicited in violation of the Defendant's rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966) This hearing was held on March 31, 2009.

The burden is on the People to prove the statements in question voluntary beyond a reasonable doubt before their admission into evidence before the jury on the People's case in chief at trial. People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965); People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977). In an attempt to meet their burden, the People relied exclusively on the testimony of Detective Thomas Pollack.. The Defendant did not call any witnesses.

As conceded by the Defendant, the court found Detective Pollack to be credible and, based upon his testimony, makes the following findings of fact:

Detective Pollack first received this case for investigation on April 27, 2008. Following his receipt of the case, Detective Pollack telephoned the Defendant, advised him that he was investigating a case involving the Defendant and a claim of threatening telephone calls. Detective Pollack asked the Defendant if he would come into the precinct to be interviewed. Two (2) days [*2]later, at approximately 9:30 p.m., the Defendant voluntarily entered the First Precinct, alone, and met with Detective Pollack, pursuant to the detective's request.

Upon entering the precinct, and meeting Detective Pollack, the Defendant followed the detective upstairs to an office, where the Defendant was seated in a chair next to a desk. The Defendant was not handcuffed at that time, nor was he placed under arrest. The Defendant remained seated at this desk for approximately forty-five (45) minutes, while the detective attended to other matters. At approximately 10:15 p.m. Detective Pollack sat down behind the desk at which the Defendant was seated and began discussing the case with the Defendant. At this time, the Defendant was neither handcuffed nor under arrest, nor were any promises or threats made to him at this time.

During this initial conversation, Detective Pollack advised the Defendant of the allegations made against him, to which the Defendant responded that he had made approximately four (4) telephone calls to the complainant to inform the complainant that he was having an affair with the complainant's wife and that he was attempting to recover $1,000.00 he had loaned to the complainant. The Defendant also advised Detective Pollack that he had been having an affair with the complainant's wife for about four and one-half (4½) months. This conversation took place between 10:30 p.m. and 11:00 p.m.

Following this initial conversation, at approximately 12:05 a.m., the Defendant was placed under arrest and read his Miranda rights. The Defendant indicated that he understood these rights, both verbally and by initialing a Miranda rights card which was also signed by Detective Pollack. The Defendant was placed in handcuffs at that time as well. In the absence of any threats, coercion, force or promises directed at the Defendant, in a calm and normal tone of voice, the Defendant agreed to continue to speak to Detective Pollack. The detective then played an audio cassette tape of a voice mail message the complainant claimed he had received at his home. Upon hearing this tape the Defendant stated that he had left the voice message to the effect that he was going to wipe the complainant off the map, but that he did not mean that he was going to kill him.

The Defendant also repeated that he called the complainant in an attempt to recover $1,000.00 and to inform the complainant that he had been having an affair with the complainant's wife.

In seeking suppression, the Defendant argues that the People have failed to demonstrate that the statements made between 10:30 p.m. and 11:00 p.m. on April 29, 2008 were made voluntarily. In this regard, the Defendant points to the fact that he was sitting at a desk in a station house and was asked questions. Additionally, while not questioning that the Defendant was properly advised of his Miranda rights, the Defendant suggests that, because the pre-Miranda statements and the post-Miranda statements are basically the same, the detective's reading of the Miranda rights is an admission that the pre-Miranda statements were improperly obtained and that the continued questioning of the Defendant after he was handcuffed was improper, unless the statements were going to be reduced to writing.

In opposing suppression the People argue that the pre-Miranda statements made by the Defendant were freely given and not made in response to custodial interrogation. Additionally, the People argue that the post-Miranda statements, while being made in response to custodial interrogation, were voluntarily made after the Defendant had properly been advised of his Miranda rights and made a knowing and voluntary waiver of such rights. [*3]

It is well established that "both the elements of police custody' and police interrogation' must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda. The fact that there may have been police questioning is not controlling." People v. Huffman, 41 NY2d 29, 390 NYS2d 843 (1976); See also: People v. Berg, 92 NY2d 701, 685 NYS2d 906 (1999) A determination of whether or not an individual was subjected to custodial interrogation will first turn on "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, 307 NYS2d 857 (1969); See also: People v. Paulman, 5 NY3d 122, 800 NYS2d 96 (2005); People v. Morales, 25 AD3d 624, 807 NYS2d 142 (2nd Dept. 2006) In making this determination the court should look to such factors as the amount of time spent with the police, whether an individual was handcuffed or restrained in any way, whether there was any questioning, the location of the questioning, was the atmosphere unduly coercive, the individual's degree of cooperation, whether the individual was apprised of his or her rights, and whether the nature of the questioning was investigatory or accusatory, See: People v. Macklin, 202 AD2d 445, 608 NYS2d 509 (2nd Dept.1994) lv. den. 83 NY2d 912, 614 NYS2d 394 (1994); People v. Warren, 300 AD2d 692, 750 NYS2d 670 (3rd Dept. 2002); People v. Parsad, 243 AD2d 510, 662 NYS2d 835 (2nd Dept.1997)

Weighing these factors, the court finds that the Defendant herein was not in custody when he initially entered the First Precinct and spoke to Detective Pollack between 10:30 p.m. and 11:00 a.m. Contrary to the Defendant's argument, "the fact that a defendant is being interviewed in the police station does not necessarily mean that he is to be considered in custody'." People v. Yukl, supra .; See also: People v. Jemmott, 144 AD2d 694, 535 NYS2d 84 (2nd Dept. 1988); People v. Torres, 97 AD2d 802, 468 NYS2d 546 (2nd Dept. 1983) It cannot be overlooked that the Defendant came into the station house voluntarily to speak with Detective Pollack, without counsel, after having been contacted by the detective (2) days earlier and specifically apprised of what the detective wished to discuss. Additionally, upon his arrival at the First Precinct the Defendant voluntarily followed Detective Pollack upstairs and sat at a desk for approximately forty five (45) minutes, without making any effort to leave, while the detective attended to other matters. When Detective Pollack finally sat down with the Defendant, at approximately 10:45 p.m, the Defendant was not restrained in any fashion, had not been made any promises and was not threatened or coerced in any way. See: People v. Watson, 158 AD2d 731, 552 NYS2d 309 (2nd Dept.1990); People v. Key, 151 AD2d 782, 542 NYS2d 759 (2nd Dept.1989) While the Defendant was again advised of the subject of the investigation, the Defendant's desire to "co-operate with the police in order to maintain his facade of innocence, ... does not require that [the court] find him to have been in custody." People v. Yukl, supra .; See also: People v. Bertolo, 102 AD2d 193, 478 NYS2d 19 (2nd Dept.1984); People v. Prahl, 124 AD2d 607, 507 NYS2d 750 (2nd Dept. 1986)

Under all of these circumstances the court finds that the pre-Miranda statements made by the Defendant were not the result of custodial interrogation, were made voluntarily; and, it was not necessary to advise the Defendant of his Miranda rights at that time. "The fact that [Defendant's repetition of these statements and] his second statement [were] preceded by Miranda warnings is not proof in and of itself of a custodial interrogation (citation omitted)." [*4]People v. Velasquez, 143 AD2d 956, 533 NYS2d 572 (2nd Dept.1988) Moreover, once placed under arrest the Defendant was properly advised of his Miranda rights and thereafter, "the totality of the circumstances indicate that [his statements] were voluntarily made." People v. Calix, 236 AD2d 550, 654 NYS2d 629 (2nd Dept. 1997); See also: People v. Lou, 244 AD2d 360, 665 NYS2d 326 (2nd Dept. 1997) Given the fact that the pre-Miranda statements were not the product of custodial interrogation, contrary to the Defendant's contention, the post-Miranda statements were not tainted by them. Compare: People v. Chapple, 38 NY2d 112, 378 NYS2d 682 (1975); People v. White, 10 NY3d 286, 856 NYS2d 534 (2008); People v. Bethea, 67 NY2d 364, 502 NYS2d 713 (1986)

Finally, although not discussed by the parties, the court notes that the notice served by the People pursuant to CPL § 710.30 identifies the statements the People seek to offer at the time of trial as being the statements made at 12:10 p.m. The notice does not make specific reference to statements having been made between 10:30 p.m. and 11:00 p.m. This lack of notice, however, does not constitute an impediment to the People's use of all of the statements identified at this hearing at trial. "[S]ince the defendant moved to suppress these statements and the trial court determined that the statements were admissible after a hearing, the defendant waived his right to raise the claim that he did not receive notice of the People's intent to use the statements (see, CPL 710.30[3]; People v. Kirkland, 89 NY2d 903, 653 NYS2d 256, 675 NE2d 1208; People v. Berry, 242 AD2d 540, 661 NYS2d 671)." People v. Fletcher, 258 AD2d 470, 685 NYS2d 98 (2nd Dept.1999); See also: People v. Johnson, 280 AD2d 613, 721 NYS2d 88 (2nd Dept. 2001)

Accordingly, the Defendant's motion to suppress the statements in question is denied and the statements shall be admissible on the People's direct case at the time of trial.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

May 8, 2009

___________________________

Andrew M. Engel

J.D.C.