People v. Nikac

2022 NY Slip Op 00436

The People of the State of New York, respondent, v. Dijela Nikac, appellant.

No. 2017-07071, Ind. No. 279/16

Supreme Court of New York, Second Department

January 26, 2022

Andrew E. MacAskill, Garden City, NY, for appellant.

Anne T. Donnelly, District Attorney, Mineola, NY (Monica M. C Leiter and Autumn S. Hughes of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P. SYLVIA O. HINDS-RADIX ROBERT J MILLER LARA J. GENOVESI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered June 9, 2017 convicting her of grand larceny in the third degree, upon her plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Howard E. Sturim, J.), of the suppression of her statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant argues that the police officers who arrested her did not have probable cause. As the defendant did not seek a ruling in the Supreme Court as to whether the officers had probable cause for her arrest, this contention is unpreserved for appellate review (see CPL 470.05[2]; People v Bigelow, 68 A.D.3d 1127, 1128; People v High, 18 A.D.3d 775). In any event, the evidence elicited at the suppression hearing established that the officers had probable cause (see People v Smith, 174 A.D.3d 655, 657).

The Supreme Court properly denied suppression of the defendant's statements to law enforcement officials." Miranda warnings need not be given until both the elements of police 'custody' and 'interrogation' are present" (People v Reardon, 124 A.D.3d 681, 683; see Miranda v Arizona, 384 U.S. 436). "The standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" (People v Paulman, 5 N.Y.3d 122, 129). "The issue of whether a suspect is in custody is generally a question of fact that does not turn on the subjective intent of the police, or the subjective beliefs of the defendant" (People v Santjer, 190 A.D.3d 983, 984 [citation omitted]). The factors to be weighed include the amount of time which the defendant spent with the police, the manner, if any, in which his or her freedom was restricted, the location and atmosphere of his or her questioning, the degree of cooperation which he or she exhibited, whether he or she was apprised of his or her constitutional rights, and whether the questioning was investigatory or accusatory in nature (see People v Brown, 177 A.D.3d 763, 765).

Here the hearing testimony established that the police officers, with the defendant's permission,...