On April 27, 2008, defendant, Shatara Gardner, was charged with violating one count of Section 120.00(1) of the New York State Penal Law (Assault in the Third Degree), a misdemeanor; and one count of Section 265.01(2) of the New York State Penal Law (Criminal Possession of a weapon in the Fourth Degree), also a misdemeanor.

A pre-trial hearing was ordered to determine defendant's motion to suppress. On April 21, 2009 a Huntley hearing relating to the voluntariness of a written statement made by defendant was held to determine admissibility at trial.

The People produced one witness, Detective Thomas Pollock, a member of the Nassau County Police Department assigned to the First Precinct Detective Squad. The defendant also testified. Based upon the credible evidence advanced at the hearing, the Court concludes the

following:

On April 28, 2008, defendant , Shatara Gardner, aware that members of the Nassau County Police Department were looking for her concerning an incident on April 27, 2008 walked into the First Precinct and surrendered herself. Testimony elicited from both witnesses has defendant arriving at the Precinct at approximately 4:30 P.M.

Detective Pollock testified that although he was scheduled to work a 4:00 P.M. X 2:00 A.M. tour of duty on April 28, 2008, he did not arrive for duty until approximately 6:30 P.M. and did not begin the questioning of defendant until approximately 7:00 P.M. Detective Pollock further testified that when he began his questioning he advised defendant that she was under [*2]investigation regarding an incident occurring on April 27, 2008. During the interview defendant, Ms. Gardner, told Detective Pollock that she had "reversed the direction of the knife that the victim was attempting to stab her with." It was at that point that Detective Pollock stopped the interview of defendant as he believed her to be in custody.^[FN1]

When questioned, Detective Pollock testified that prior to defendant making the statement regarding the handling of the knife, his interview of the defendant consisted of defendant giving "a chronological series of events of what her interaction was with the victim on the night of occurrence." Detective Pollock estimated the interview with defendant lasted approximately one hour to one hour and a half and that approximately one hour into the interview is when he determined defendant was going to be placed in custody and administered Miranda Warnings. Subsequent to being placed into custody and apprised of her rights and waiving them, defendants statements concerning the events of April 27, 2008 were reduced to a writing.

Defendant Shatara Gardner also testified. Defendants testimony attempted two raises two contradictions. The first is when defendant was placed in handcuffs, the second being when Miranda Warnings were administered.

The Court notes that both witnesses appeared to be credible.

The Miranda rule protects the privilege against an individuals self-incrimination and, "because the privilege applies only when an accused is compelled' to testify, the safeguards required by Miranda are not triggered unless a suspect is subject to custodial interrogation' " ( People v. Berg, 92 NY2d 701, 704, 685 NYS2d 906, 708 NE2d 979 [1999] ).

The Courts have recognized a standard for assessing custodial status to that of whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave ( see People v. Harris, 48 NY2d 208, 215, 422 NYS2d 43, 397 NE2d 733 [1979]; People v. Yukl, 25 NY2d 585, 589, 307 NYS2d 857, 256 NE2d 172 [1969], cert. denied 101 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ).

"The term interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response" ( People v. Ferro, 63 NY2d 316, 322, 482 NYS2d 237, 472 NE2d 13 [1984], cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 [1985], quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 [1980] ).

In assessing custodial status, the Court should consider factors such as the amount of time spent with the police, whether the suspect was handcuffed or restrained in some way, whether there was any questioning, the location of the questioning, was there any degree of [*3]voluntariness on the part of the suspect and whether the questioning was investigatory or accusatory in nature. (People v. Macklin, 202 AD2d 445, 608 NYS2d 509 (2nd Sept. 1994). People v. Warren, 300 AD2d 692, 750 NY S. 2d 670 (3rd Dept. 2002; People v. Parsad, 243 AD2d 510, 662 NYS2d 835 (2nd Dept. 1997).

In considering all of the factors the Court finds that defendants privilege against self-incrimination was not violated. Although defendant testified credibly and raised two factual issues as to her custodial status, they are easily resolved. Detective Pollock testified that when he began his interview defendant was not handcuffed and that it was not until approximately an hour into the interview that he administered Miranda Warnings. Defendant testified that after voluntarily entering the First Precinct she identified herself and was told to wait for approximately five minutes on a bench. Shortly thereafter, she was called to go upstairs to the Detective area interview room where approximately another thirty minutes elapsed before Detective Pollock entered the room. On re-direct, defendant testified to the following:

Q.The question is were the rights the first thing that the detective did when you walked into that room?

A.Yes

Q.The first thing he did was read you your rights?

A.Yes.

(Hearing Transcript P.45, lines 17-23)

Although defendant's testimony contradicts the testimony of Detective Pollock as to when Miranda Warnings were administered and when defendant was actually placed in handcuffs, accepting both versions as plausible the Court would come to the same conclusion that either version is consistent with proper application of Miranda Warnings protecting defendants right against self-incrimination.

Accordingly, defendants motion to suppress the written statement is denied and shall be admissible at time of trial.

So Ordered:

___________/s/________________

DISTRICT COURT JUDGE

Dated: August 12, 2009