People v. Nunez

*71OPINION OF THE COURT

Levine, J.

This appeal arises from the denial of a motion by defendant to suppress certain statements made by him following his arrest. The relevant facts, as established at the suppression hearing, are as follows. On the evening of March 3, 1989, members of the Capital District Drug Task Force placed under surveillance the Amtrak Train Station in the City of Hudson, Columbia County, for the purpose of intercepting a cocaine shipment expected to arrive at that location and arresting defendant pursuant to a superior court warrant out of Schenectady County on a cocaine possession charge. Following defendant’s arrival at the station and subsequent arrest, he was transported to the Hudson Police Department where he was advised of his Miranda rights by Investigator David Penny. Also present at that time was Officer William Ward. At the conclusion of the warnings, defendant was asked whether he understood each of his rights and he nodded his head affirmatively. Defendant was then asked by Penny whether he wished to "talk to us now”, to which defendant did not respond. Instead, defendant put his head down and exhaled. At that point, Penny took pedigree information from defendant but engaged in no further conversation with defendant.

Approximately 2 Vi hours later, after being brought to the Albany office of the Task Force and while he was being fingerprinted by Ward, defendant asked Ward "how [they knew] that he was going to be in Hudson that evening”. Before Ward could reply, defendant stated, "I think I know that answer.” Ward then asked defendant "[h]ow much a person could make bringing up a half a kilo of cocaine to Hudson”, and defendant replied that "[he] would have received $5,000”. Ward further asked how much "Alex”, an individual also arrested that evening, received and defendant told him "[f]ive hundred”. Finally, Ward inquired as to why there was such a difference, to which defendant responded, "Alex was just a courier. You have to be able to crawl before you can walk.”

Defendant was subsequently indicted by a Columbia County Grand Jury on a cocaine possession charge. Following the denial of his motion to suppress the above-described statements, defendant entered a plea of guilty to criminal possession of a controlled substance in the second degree. This appeal ensued.

*72Defendant’s sole contention on this appeal is that County Court erred in refusing to suppress the statements made by him to Ward because there was no valid waiver of his Miranda rights. This claim is unavailing. While defendant correctly argues that no waiver may be presumed from a defendant’s silence alone (see, Miranda v Arizona, 384 US 436, 475), a waiver may be established by implication from the defendant’s "silence, coupled with an understanding of his rights and a course of conduct indicating waiver” (North Carolina v Butler, 441 US 369, 373; see, People v Sirno, 76 NY2d 967, 968; People v Warden, 170 AD2d 469, 470, lv denied 77 NY2d 968; People v Bretts, 111 AD2d 864, 865). Here, it is undisputed that defendant indicated that he understood his rights, that he made no request for an attorney, and that he put his head down and remained silent when Penny asked him whether he wanted to speak with them. Defendant then, within 2 Vi hours of being advised of his rights, spontaneously and voluntarily initiated a conversation with Ward regarding his involvement in the suspected crime.

The record supports County Court’s finding that this dialogue was not the result of any police conduct which reasonably should have been anticipated to evoke a declaration from defendant (see, People v Lynes, 49 NY2d 286, 295; People v Bretts, supra). Having examined the totality of the circumstances (see, Fare v Michael C, 442 US 707, 725; People v Dunwoody, 89 AD2d 569, 570), it is our view that defendant, by his silence together with his acknowledgment that he understood his rights and his subsequent conduct in initiating conversation with Ward, implicitly waived his Miranda rights (see, People v Warden, 170 AD2d 469, 470, supra; People v Bretts, supra; see also, People v Griffith, 94 AD2d 850, 852). Thus, although the statements made by defendant after his initial inquiry to Ward were the result of direct questioning, they were nevertheless properly found to be admissible because they were made pursuant to a valid waiver (see, People v Bretts, supra). County Court’s denial of defendant’s suppression motion should therefore be affirmed.