| People v Hightower |
| 2017 NY Slip Op 07573 |
| Decided on October 31, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 31, 2017
Richter, J.P., Webber, Kern, Moulton, JJ.
4845 4649/11
v
Kahn Hightower, Defendant-Appellant.
Resko Law Office, P.C., Mount Kisco (Michael Resko of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered July 10, 2012, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a term of six months, unanimously affirmed.
The court properly denied defendant's motion to suppress a statement he made to the police before the administration of Miranda warnings. The record amply supports the court's finding that defendant was not in custody at the time of the statement (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Defendant voluntarily accompanied the police to the precinct, he was not handcuffed or in any way restrained at the time he made the challenged statement, and he had been explicitly told that he was not under arrest (see e.g. People v Andrango, 106 AD3d 461 [1st Dept 2013], lv denied 21 NY3d 1040 [2013]; People v Colon, 54 AD3d 621, 622 [1st Dept 2008], lv denied 11 NY3d 923 [2009]). In any event, the record also supports the court's finding that the challenged statement was a spontaneous, freely volunteered utterance that was unprompted by any police interrogation or the functional equivalent thereof (see People v Rivers, 56 NY2d 476 [1982]).
Defendant's challenges to the prosecutor's opening statement and summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 [1992]; People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 31, 2017
CLERK