A combined Huntley/Dunaway hearing was held on October 19, 2016 and continued to November 3, 2016 with respect to defendant's motion to suppress statements he made to law enforcement on the grounds that they were made involuntarily and in violation of his constitutional right to counsel, and, that defendant's statements were the result of an unlawful detention.

Defendant is charged with Tampering with Physical Evidence (Penal Law § 215.40)[2], Criminal Possession of a Controlled Substance in the Third Degree (PL §220.16[1]), Criminal Sale of a Controlled Substance in the Third Degree (PL § 220.39[1]), and Endangering the Welfare of a Child (PL § 260.10[1]).

The People called the following witnesses: Greece Police Officers Valerie Cutt, Anthony Borrelli and Nicholas Marello; Sergeant Kevin Ewanow; and investigators Sergeant Joseph Hopper and Deputy Chief Casey Voekl.

What follows are the Court's Findings of Fact and its Conclusions of Law.

On December 24, 2014 at approximately 6:22 p.m., Greece Police Officers Cutt was [*2]dispatched to a single family residence located at 32 Camomile Drive in the Town of Greece in response to a 911 call for a female drowning, unresponsive. Officer Cutt walked in and saw fire and ambulance first responders attending to a female, later identified as Nicole Grana, lying prone and unconscious on the floor of the living room. Also present when Cutt first arrived were Greece Police Department Officers Borrelli and Dill.

Officer Cutt also saw a white male, identified as the defendant Dominic Mineccia, standing in the living room holding a small child. Cutt heard fire department personnel ask the defendant to remove the child from the scene, so defendant elected to go to the basement. He was escorted there by Officer Anthony Borrelli.

Officer Cutt went into the basement a short time later, and asked the defendant questions regarding the Ms. Grana's medical history, whether she had attempted suicide on previous occasions, and whether she had any previous drug use history. She also asked the defendant if there had been any alcohol use that day, and the defendant said that the female had consumed four beers. Officer Cutt at that time had no reason to believe that a crime had been committed at the residence. The basement was partially finished, with a couch and toys.

Before speaking with the defendant Cutt went into the kitchen and noticed several empty beer cans, of the 22-ounce variety.

Cutt asked the defendant what had happened, and the defendant said that he had come home from the store, found the bathroom door locked, entered the bathroom, and found Ms. Grana outside of the tub, with her head in the tub. Defendant believed she was breathing, so he picked her up and brought her into the living room, and started life-saving efforts by blowing in to her mouth, but saw blood come out so he called 911.

The defendant responded to all questions put to him in an appropriate fashion. He appeared to understand the questions. He was not handcuffed or restrained. He did not appear to be intoxicated or under the influence of drugs, although Cutt has had many occasions to see persons in an intoxicated condition or under the influence of drugs.

Officer Anthony Borrelli responded to 32 Camomile as well, shortly after receiving the dispatch at 6:19 p.m. When he arrived he noticed first responders attending to the female, who was unconscious. He noticed as well a white male, identified as the defendant. The defendant was holding a child. He heard the fire department chief ask the defendant to leave the room so that the child wouldn't have to see his mother being worked on. Defendant agreed and voluntarily walked down a flight of stairs and into the basement. Borelli accompanied him.

In the basement Mineccia sat on a couch holding his son. Borrelli asked him questions regarding pedigree information, medical history of Nicole Grana, use of medication, and drug use history. He asked about the events that led up to her condition. Defendant said he was not aware of any drug use. Mineccia said he and Grana had an argument. He went to the store, which would have been around 6:00 — 6:15 p.m., returned shortly, and found the bathroom door locked. He heard a child screaming in the bathroom. He received no response from Grana so he picked the lock. He found Grana in the bathtub, with her head and back bent towards the floor of the tub. His son was in the bathtub with her. He pulled her out of the bathtub and put her on the couch. He thought Ms. Grana was playing a joke, so he felt her heart and heard a beat, then went back to take care of the baby. He came back to her, felt something was wrong, attempted to blow [*3]into her mouth, saw blood come out, so he called 911.

The defendant also related that he and the Grana have been in a relationship for three years, that they had a child together, that they had broken up a few weeks prior and that Ms. Grana had begun a relationship with another male, but they had gotten back together. However, he admitted that their trust had been "compromised" over that period.

The entire conversation took about ten minutes.

At no time was the defendant threatened or coerced into speaking with Borrelli in the basement. At no time did he ask that the questioning cease or state that he would like an attorney. The defendant appeared alert. His answers were responsive and appropriate to the questions asked. He was not handcuffed. He was free to leave at any time. He was cooperative and his freedom of movement was not restrained in any way. He was not under arrest.

Eventually the fire department chief came into the basement and told the defendant that there was nothing that could be done for Ms. Grana, and asked, did he want her transported to the hospital, although it was unlikely anything could be done for her there. The defendant declined.

Officer Nicholas Marello responded to 32 Camomile Lane as well shortly after receiving the dispatch generated by the 911 call.

He proceeded to the basement, where he saw a white male, identified as the defendant, speaking with Officer Borrelli. Marello asked the defendant what had happened. Defendant said he had an argument on the phone with his girlfriend Nicole Grana. They were supposed to attend a Christmas party later in the evening. He stopped at a CVS at the corner of Long Pond Road and English Road (which Officer Marello knew to be about five miles away) to buy hair gel. When he returned home, at around 6:00 p.m., he believed Ms. Grana was in the bathroom. When he tried to enter, he found the door locked. He opened the door and found her in the tub.

Officer Marello went into the kitchen and saw a CVS bag with hair gel in it. He pulled out the receipt and looked at it. It was time-stamped "4:39 p.m." He put the receipt back in the bag. He did not ask the defendant for permission to look into the bag.

At no time was the defendant coerced or threatened into speaking with the officer. The defendant never asked for an attorney. He did not appear to be under the influence of any narcotics. He gave answers that were appropriate and responsive to the questions being asked. He was not restrained in any way.

Greece Police Department Sergeant Kevin Ewanow arrived at the scene at around 6:24 p.m. He was briefed on the situation by Officer Dill, and after being told that the defendant had related that he found his girlfriend slumped over in the tub, he walked into the first floor bathroom and surveyed the area. He noticed that the stopper was still in the tub and that there very little in the way of water in the bathtub or on the floor. He also noticed clothes and a dirty diaper.

A short time later Sgt. Ewanow went into the basement. He made contact with a male that he identified as the defendant. He asked the defendant to provide a brief re-counting of what had happened. Defendant told him that he had run to the CVS store to buy hair gel, returned 10-15 minutes later, found the bathroom door closed and assumed Ms. Grana, his girlfriend, was giving their son a bath, waited another five to ten minutes, heard nothing, received no response when he called out to her, so he unlocked the door with a paper clip, entered, and found her slumped over in the bathtub. He pulled her out of the bathtub and carried her into the living room, retrieved his son from the bathtub, went back to Ms. Grana and tried mouth to mouth [*4]breathing on her, at which point blood came out of her mouth, so he called 911.

The defendant's son was with him when he gave this statement.

The defendant's answers were appropriately responsive, he was not handcuffed or restrained in any way, no threats or promises were made to him, to get him to speak. Defendant did not appear to be under the influence of drugs or alcohol.

Sgt Ewanow then went upstairs. He noticed the CVS bag on the kitchen counter with a bottle of hair gel in it. He went back downstairs. He was told shortly after that life-saving measures had been terminated.

Defendant was informed of that as well, and when he heard that he became distraught and curled up in a ball on the stairs.

Ewanow asked the defendant if he wanted anything or if there was anything he could do for him, and the defendant said that he wanted to be with his son. Ewanow told him that his son was next door and that he would go with him to get him. Defendant asked if Ms. Grana was still upstairs. He was told that her body had not been removed, and defendant said he couldn't go up there, that he did not want to pass by her. Ewanow then went and retrieved defendant's son.

While upstairs again Sgt. Ewanow noticed a substance in the driveway which appeared to be vomit, and in the vomit was a tire track impression. He also noticed in the garage another puddle of what looked like vomit, on the passenger side of the vehicle in the garage, also with a tire track in it. Dill told Ewanow that the defendant had told him that after finding the victim's body he had gone out to the garage and vomited.

Sergeant Joseph Hopper then arrived to the residence at 32 Camomile Lane at around 7:30 p.m. and he and Sgt Ewanow went back down into the basement, where the defendant was located, with his son. Hopper identified the defendant as the person with whom he spoke in the basement. Sergeant Hopper sat down next to the defendant and asked him what had happened. Defendant said that when he returned from the store, his girlfriend didn't respond when he knocked on the bathroom door, and he believed she was just made at him because they had had an argument. He then heard his child crying about ten minutes later. He unlocked the door with a paper clip and entered the bathroom and found his girlfriend sitting in the bathtub with her face down between her legs. He said the tub was full, but he wasn't sure whether her face was submerged.

This conversation occurred as the defendant was sitting on a couch in the basement. He wasn't restrained in any way. His responses were appropriate to the questions asked. At that point the defendant was not considered a suspect of a crime. No threats or coercion were used to get the defendant to speak with Hopper.

Hopper asked the defendant if he would voluntarily come to the Greece Police station to answer some questions. Defendant freely and voluntarily went out the door with Hopper. On the way out defendant was given a sweatshirt to wear and shoes, but changed his shoes. They got into Hopper's unmarked Ford Fusion. Defendant got into the passenger front side. The door was unlocked. Borrelli followed them to the police headquarters at 400 Island Cottage Road.

When they arrived at the police station defendant was taken to an interview room, which was equipped with a video camera that recorded the encounter. Defendant was told that he was there of his own free will and that he was free to go at any time. No threats or promises were used against the defendant to get him to speak with the investigators.

The interview room was on the second floor of the police station, and it is an open floor, meaning a person can walk around freely. The door to exit the building is not locked except for [*5]people entering.

The DVD recording of the encounter was marked and received as People's Exhibit 1.

The interview continued for 2-3 hours, was interrupted after the defendant signed a consent to search his residence and vehicle, and then resumed after the defendant had slept in the room for about three hours. Present during the interview was Casey Voekl and Hopper. Defendant was not handcuffed. He was free to move about. The door to the room was open. He was offered food and drink and was provided water and use of a bathroom. Defendant was cooperative and his answers were responsive to the questions that were being asked. He never asked to stop or to speak with an attorney. He was allowed to sleep. He was allowed to keep his cell phone. He was repeatedly reminded that he was free to leave. No force or threats of force were used to get the defendant to speak with the investigators. Defendant was at all times cooperative and even at times eager to provide information about what had happened that evening.

The first session, before the consent was signed, focused on several areas of inquiry. One was friends that the victim had, including a Russian female who it was suggested may have been a prostitute. Another was the victim's own drug habits, whether she had a history of abuse and had been in treatment, and whether she had consumed any drugs that evening. Defendant was also asked about a person the victim may have been seeing during a period of recent estrangement from the defendant. The investigators explored different causes for the accident. They inquired whether the accident happened in the course of an argument between the defendant and the victim, and that maybe she had pulled back from him and fell and struck her head, which the defendant denied. They asked whether it was possible she would do something to herself intentionally.

Defendant on several occasions insisted to the investigators that he had nothing to hide.

At one point in the interview the defendant vomited several times into a trash can. Asked if he needed anything, defendant replied, essentially, "I'm fine."

Defendant was at the station for a total of approximately 8 hours, of which approximately three hours he was sleeping.

Voekl and Hopper asked the defendant whether they could have permission to search the residence at 32 Camomile as well as the defendant's vehicle. Defendant readily agreed. He signed a voluntary consent form for the vehicle and for the residence, each of which was received into evidence as Exhibits 2 and 3. The time of the execution of the consent was indicated to be 11:42 p.m. Defendant was told, shortly after executing the consents, that he can change his mind at any time, to let the investigators know, and that "we are not forcing you into doing anything you don't want to do." Defendant responds that he has nothing to hide.

Through the course of the interview the defendant was on occasion confronted with inconsistencies in his previous statements, and as a result revealed facts he hadn't shared during the interviews in his basement. Confronted with the fact that the vomit in the garage had tire tracks through it, defendant disclosed that he did leave the residence, and in doing so, had loaded his girlfriend Nicole Grana's body into his car, put his child into the car, and pulled out, went down the street and onto Maiden Lane. He eventually returned around and went back, which he said explained why there were tire tracks in the vomit.

Defendant initially denied any drug use by him or by Ms. Grana. Following a break in the interview, during which time the defendant slept for several hours, the interview resumed. The investigators tell the defendant that they had spoken with Ms. Grana's mother, who said that she [*6]believed that Ms. Grana used prescription pain medication for recreational use, and that the defendant did so as well. Defendant signaled his agreement.

Voekl asked if defendant and Ms. Grana were using anything. Defendant admitted that he had bought heroin on Lyell Avenue from a random dealer and provided it to her, but that he wasn't there when she did it.

Defendant went on to state that he had bought two bags, poured out the heroin into two lines, and threw the bags into the toilet. He did one line, and then he left, leaving the line on the counter, as he had gone to the store to buy the hair gel.

He continued to describe the details of the transaction. He had purchased $20.00 worth of heroin on Lyell Avenue in the city, and that he had snorted one of the bags right there, before returning home.

He had put Ms. Grana in the car, along with his son, believing that she might still be alive.

Because the admissions struck the officers as approaching the level of a crime, questioning was stopped and the defendant was placed under arrest.

Through the interview the defendant appears oriented and relaxed. He responds readily and appropriately to questions. At no time are threats or promises used to get the defendant to speak with the investigators. He is reminded repeatedly that he is there voluntarily. Although he vomits several times, he seems to say that he is fine and can continue. His mental faculties, including his reasoning, recall, and articulation, do not appear to be affected by the influence of drugs or alcohol. After sleeping for several hours, he answers questions in a manner that suggests fatigue, but not excessively so — his responses continue to be appropriate and understandable. The investigators ask questions in a manner that is non-threatening and even at times solicitous of the defendant's needs and concerns.

Early in the interview, the defendant asked Voekl, "can I go home now? I'm tired now. I have been working since seven this morning. I'm like exhausted." Neither Voekl nor Hopper respond directly to this inquiry, but rather, continue to ask the defendant for the phone number of a person to whom the defendant was renting an apartment, one Josh Miller.

Voekl then asks if he can look at the texts from Ms. Grana on defendant's Apple 6S phone, and defendant tells him not to, that "its personal." Defendant at that point gets somewhat agitated, and says, "I didn't do anything wrong and now you guys are starting to change all that and I get harassment."

Voekl's answer to the defendant's complaint is non-responsive to his concern, although there is no indication that the inquiries about the phone rose to the level of harassment.

Defendant then says that he knows "that it isn't a good idea to talk if one doesn't have a lawyer," but because he is thinking he didn't do anything wrong, "it would be okay to talk. So." Voekl responds, "we are here to work for you."

At one point in the interview, at around the time the defendant is executing the consents to search, he asks Voekl, "how long before I can get my son and go home? Is it going to be while?" Defendant is told that it will take a while to process the scene and that he would be told when they were done.

A short time later the defendant was allowed to go outside and smoke a cigarette. Hopper and Voekl go with the Defendant. Defendant asks him if he can go home now, and according to Hopper, Voekl responds and says "the body is still there and they're cleaning up." Asked by counsel whether at that point, the defendant was not allowed to leave and went back inside the police department, Hopper say, "yes, we went back inside the Greece Police Department."

At a hearing to consider suppression of statements made by a defendant, the People bear the burden of proving beyond a reasonable doubt that the statements were voluntarily made and not the result of coercive police activity (People v Guilford, 21 NY3d 205, 208 [2013]).

Miranda warnings are required whenever a person is subjected to custodial interrogation; that is, when a person's freedom of movement is restrained in a manner associated with a formal arrest, and the questioning is intended to elicit incriminating evidence. (See Miranda v Arizona, 384 US 436 [1966]; People v Bennett, 70 NY2d 891, 893-894 [1987]; People v Shelton, 111 AD3d 1334 [4th Dept 2013], lv denied 23 NY3d 1025 [2014]). 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 (People v. Huffman, 41 NY2d 29, 33 [1976]).

The issue of whether a person is in custody is generally a mixed question of law and fact question of fact (see People v. Paulman, 5 NY3d 122, 29[2005]). In deciding whether a defendant was in custody, the test is not what the defendant thought, but rather, whether a reasonable person, innocent of any crime, would have believed that he or she was in police custody (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). The factors to be considered include the amount of time the individual spent with the police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (see (People v. Centano, 76 NY2d 837 [1990]; (People v. Pagan, 97 AD3d 963, 966 [3rd Dept 2012], lv. denied 20 NY3d 934 [2012]; People v Macklin, 202 AD2d 445, 46 [2d Dept 1994], lv denied 83 NY2d 912 [1994)]).

Here, in light of the totality of the circumstances, the defendant cannot be said to have been in police custody at any point from the first encounter with police until the point in the interview room at police headquarters at which he admitted to having purchased heroin from a random dealer on Lyell Avenue and providing it to be consumed by his girlfriend Nicole Grana, at a time when he was about to leave her alone with their 18-month old child.

Certainly at no point in the questioning which occurred at defendant's residence would a reasonable person, innocent of any crime, have felt he was in custody. Defendant was in his house. He was free to move around. He voluntarily proceeded to the basement, which was a partially finished room. He was with his son part of the time. Law enforcement officers had no reasonable suspicion at that time to believe a crime had been committed. Police asked legitimately investigative questions as to what had caused the death of a 24-year-old woman.

Similarly, with respect to the interview at police station, a reasonable person would not have felt himself to be in custody until the point where the defendant he admitted to a possible crime (see People v Borukhova, 89 AD3d 194, 212 [2d Dept 2011]).

Several factors lead the court to this conclusion. The court credits the testimony of Sergeant Hopper and Officer Borrelli, finding them to have been "frank, candid, and trustworthy and [that their] testimony had the general force and flavor of credibility," People v Henry, 114 AD3d 1025, 1027 [3d Dept 2014], and concludes that defendant voluntarily accompanied Hopper to the police station (see People v Henry, 114 AD3d 1025, 1026—27 [3d Dept 2014]).

Defendant traveled there in an unmarked, unlocked police vehicle in the front seat. He was in an interview room in the "CID" section on the second floor, but the second floor was open and access from it was not restricted in any way. Defendant could have walked out as the exit door were not locked from the inside. The fact that he was taken to a police station is in no way dispositive (see People v Stebbins, 152 AD2d 946, 947 [4th Dept 1989]).

Defendant was told repeatedly he was free to leave at any time. He was thanked profusely for being there. The manner and tone of the officers was at all times non-threatening and non-accusatory, even polite. Defendant was left alone for long periods of time. He was offered food and drink. He was allowed to leave the station and smoke a cigarette (see People v Towsley, 53 AD3d 1083, 1084 [4th Dept 2008]), although admittedly, he was accompanied by Officer Hopper.

Questioning was interrupted several times (see People v. Centano, 76 NY2d 837 [1990]). Defendant was not handcuffed at any time. The room was unlocked. He never protested the questioning, except when questions were asked about the cell phone and the number of his renter/roommate, and even then, his protest was minimal and even apologetic (see Centano at 838)

At the junctures when the defendant expressed a desire to leave, the Court acknowledges it is confronted by circumstances on which "reasonable minds may differ as to the inference[s] to be drawn" from the facts (People v Centano, 76 NY2d 837, 838 [1990]).

Nonetheless, the Court finds that a reasonable person innocent of any crime would have felt free to leave, even after having inquired as to whether he could leave, and the court further finds credible the responses of the officers to the defendant's inquiries.

On the first occasion, the investigators do not directly answer his inquiry but rather, as seen on Exhibit 1, appear focused on trying to record and write down and confirm the phone number of the person who lived at the residence, their intent having been to determine if that person had anything to do with the death of Nicole Grana.

The second time, which occurred off the recorded portion of the interview and outside the police station as the defendant was having a cigarette, the Court finds that the police response to defendant's request to go home was reasonable and not a subterfuge to prevent him from leaving. It was stated that the body was still at the house and that police personnel were cleaning up. Since the defendant had already indicated he did not want to be in the presence of the body, the investigators response was reasonable, did not indicate a refusal to let the defendant leave, and went uncontradicted at the hearing.

The third time is not dissimilar. Again, the defendant asks if he can get his son and "go home." Since he had just signed a consent to search, the court finds the officers were credible when they told him that the search was ongoing and that he could not go back there just then. Certainly no evidence at the hearing contradicts their statement. Defendant never asked to go somewhere else.

This case is thus distinguishable from People v. Robbins, 236 AD2d 823 [4th Dept 1997]), where the defendant was taken to a police station and after four hours of being asked questions, [*7]said, "I am tired, can I go home?" There the Fourth Department found that the defendant was no longer free to leave and reversed the holding of the lower court. However, defendant in that case had been interviewed without interruption by seven different officers, in teams of two, and had never been left alone during that period of time. Here the circumstances differ significantly. The questioning is relaxed, even congenial for a considerable period of time, was investigatory rather than accusatory, and was interrupted frequently. The element of coercion was lacking. The same two officers conduct the interview.

Thus, the Court finds that the People have sustained their burden of proving beyond a reasonable doubt that the statements were voluntary and not the result of coercive police activity made in the absence of Miranda warnings. Moreover, the defendant was not in police custody at any time up to point indicated above, so that Miranda warnings were not required until then.

With respect to the Dunaway portion of the Defendant's motion, the People have the initial burden of going forward to show by credible evidence that the police acted lawfully in their arrest of the defendant (People v. Bigelow, 66 NY2d 417 [1985]; People v. McRay, 51 NY2d 594, 602 [1980]).

Here the People have sustained their burden. Defendant was not in police custody, was not, in fact under arrest or even restrained, at any point until he made an admission to a possible crime. Therefore, the detention was not unlawful.

Defendant's motion to suppress statements made to law enforcement is denied in part and granted in part. All statements up to the point where he says, in the interview room as the police station and as depicted on the DVD recording received as Exhibit 1, "It was random," are admissible. All statements made in the interview that ensured after that point, during which defendant was not advised of his Miranda warnings, are suppressed.

This is the ORDER of the Court. Dated: March 31, 2017