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

1112
KA 09-01244
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID RODRIGUEZ, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered March 30, 2009. The judgment
convicted defendant upon his plea of guilty of, inter alia, course of
sexual conduct against a child in the first degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of, inter alia, course of sexual conduct against a
child in the first degree (Penal Law § 130.75 [1] [b]), defendant
contends that Supreme Court erred in refusing to suppress statements
that he made in his home to a police investigator who was executing a
search warrant. We reject that contention. The court properly
determined that Miranda warnings were not required because defendant
was not in custody when he made the statements at issue (see People v
Witherspoon, 66 AD3d 1456, 1458, lv denied 13 NY3d 942; People v
Nunez, 51 AD3d 1398, 1400, lv denied 11 NY3d 792; People v Soroka, 28
AD3d 1219, 1220, lv denied 7 NY3d 818). Defendant was not handcuffed
or otherwise restrained during the interview or the execution of the
search warrant, and he was free to move about the apartment (see
People v Cerrato, 24 NY2d 1, 8, cert denied 397 US 940; People v
Lavere, 236 AD2d 809, 809, lv denied 90 NY2d 860). Defendant was not
told that he was under arrest and, indeed, the investigator left the
apartment without arresting defendant (see Cerrato, 24 NY2d at 8-9;
Soroka, 28 AD3d at 1220; Lavere, 236 AD2d at 809). We conclude that,
under those circumstances, a reasonable person innocent of any
wrongdoing would not have believed that he or she was in custody (see
People v Paulman, 5 NY3d 122, 129; People v Yukl, 25 NY2d 585, 589,
                                 -2-                          1112
                                                         KA 09-01244

cert denied 400 US 851; Lavere, 236 AD2d at 809).




Entered:   November 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
