The defendant is charged with assaulting his wife with a meat cleaver. A Huntley hearing was held before the court on May 12, 2010. Testifying credibly at the hearing were Police Officer Jonathan Bermudez and Jennifer Bess, an employee of the Kings County District Attorney.

On July 6, 2009, Police Officer Bermudez responded to 1345 67th Street in Brooklyn. Arriving, he observed the complainant, Shaoling Ye on the sidewalk bleeding from her head. She told the officer through someone translating for her, that her husband did it and that he was upstairs. The officer went to the second floor apartment, handcuffed the defendant and brought him to Ms. Ye who identified him as her attacker. [*2]

The defendant was arrested, taken to the 68th precinct and placed in a holding cell. Several hours later, as Officer Bermudez

was about to fingerprint him, the defendant asked the condition of his wife. Officer Bermudez responded by asking if he cared. The defendant then admitted that he hit his wife with the cleaver two or three times during an argument.

Ms. Bess took information about the arrest from the officer as part of her duties in the Early Case Assessment Bureau, indicating that the statement was made as the result of "questioning."

A criminal suspect in police custody must be advised of his Constitutional rights before he can be questioned by the police (Miranda v Arizona, 384 US 773). However, not every remark by the police to a defendant constitutes questioning and will not be considered as such unless the comment could reasonably have triggered the incriminating statement (People v Daniels, 6 AD3d 245; People v Logan, 280 AD2d 615).

In this case, the conversation was brief, initiated by the defendant, and the officer's off-the-cuff remark, "do you care" is not one designed to elicit an incriminating response; certainly not the response given by the defendant. In some ways, Officer Bermudez response can be viewed as designed to stop the conversation short. As such, defendant's statement was spontaneous and not the result of police questioning in violation of the defendant's constitutional rights and will not be suppressed (People v Lynes, 49 NY2d 286).

The clerical duties of Ms. Bess do not add to the inquiry, as she was not present at the time the conversation took place and only filled in blanks on a form with one word answers.

This constitutes the Decision and Order of the court.