        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

317
KA 11-01819
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARIE R. SIMMONS, ALSO KNOWN AS MARIE LUNDY,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (James J.
Piampiano, J.), rendered July 1, 2011. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting her upon a jury
verdict of assault in the second degree (Penal Law § 120.05 [2]),
defendant contends that Supreme Court (Egan, J.) erred in refusing to
suppress statements she made to law enforcement personnel. We reject
that contention. Law enforcement officers responded to a call of a
stabbing and were informed that an unknown white male had stabbed
defendant’s husband. Investigators with the City of Rochester Police
Department questioned defendant at the scene, and she reiterated her
statements that an unknown assailant stabbed her husband. Defendant
was then transported by police vehicle to the hospital where her
husband was undergoing surgery. While at the hospital, two
investigators interviewed defendant in a family waiting room. After
noting inconsistencies and discrepancies in defendant’s statements,
investigators asked defendant if she had been the person to stab the
victim. At that point, defendant admitted stabbing the victim during
an argument.

     For the next 17 minutes, one investigator continued questioning
defendant while another made phone calls to a detective and an
assistant district attorney. The latter investigator then returned to
the family waiting room and informed defendant of her Miranda rights.
Defendant indicated that she understood her rights and was willing to
waive them and discuss the matter with the investigators. Following
that waiver, defendant provided the officers with a written statement.
                                 -2-                           317
                                                         KA 11-01819



     Contrary to defendant’s contention, she was not in custody at any
time before Miranda warnings were issued. A reasonable person,
innocent of any crime, would not have thought he or she was in custody
either at the scene or while conversing with the investigators in the
family waiting room at the hospital (see People v Figueroa-Norse, 120
AD3d 913, 913-914, lv denied 25 NY3d 1071; People v Lopez, 39 AD3d
1231, 1232, lv denied 9 NY3d 847; see generally People v Yukl, 25 NY2d
585, 589, cert denied 400 US 851). Although the investigators may
have determined to arrest defendant after her initial admission and
before the Miranda warnings were administered, their subjective views
of defendant’s custodial status, which were not conveyed to defendant,
“ha[ve] no bearing on the question whether [defendant] was in custody
at a particular time” (People v Andrango, 106 AD3d 461, 461, lv denied
21 NY3d 1040 [internal quotation marks omitted]; see Berkemer v
McCarty, 468 US 420, 442; see also People v Ealy, 20 AD3d 933, 934, lv
denied 5 NY3d 805). Contrary to defendant’s further contention,
“[t]he record of the suppression hearing supports the court’s
determination that defendant knowingly, voluntarily and intelligently
waived [her] Miranda rights before making the [written] statement”
(People v Irvin, 111 AD3d 1294, 1295, lv denied 24 NY3d 1044,
reconsideration denied 26 NY3d 930; see People v Pratchett, 90 AD3d
1678, 1679, lv denied 18 NY3d 997).

     Finally, viewing the evidence in light of the elements of the
crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), including the charge on the defense of justification, we
conclude that “the jury ‘did not fail to give the evidence the weight
it should be accorded in rejecting defendant’s justification defense’
and thus that the verdict is not against the weight of the evidence in
that respect” (People v Barill, 120 AD3d 951, 951-952, lv denied 24
NY3d 1042, reconsideration denied 25 NY3d 949; see People v Reed, 78
AD3d 1481, 1482, lv denied 16 NY3d 745; see generally People v
Bleakley, 69 NY2d 490, 495).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
