People v. Downey

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [4]) and criminal contempt in the first degree (Penal Law § 215.51 [b]) and sentencing him as a second felony offender to concurrent terms of incarceration of IV2 to 3 years. The sole contention of defendant on appeal is that County Court erred in denying his motion to suppress his statements on the ground that they were not preceded by Miranda warnings. The court properly refused to suppress defendant’s initial oral statements at the police station. Although those statements were not preceded by Miranda warnings, they were spontaneous and not in response to “interrogation”, i.e., words or actions by police that were intended or likely to elicit an incriminating response (see, Rhode Island v Innis, 446 US 291, 300-302; People v Velasquez, 68 NY2d 533, 537; People v Ferro, 63 NY2d 316, 318, 322-323, cert denied 472 US 1007; People v Maerling, 46 NY2d 289, 303). 795 Similarly, the court properly refused to suppress defendant’s subsequent oral and written statements. The evidence established that defendant was not intoxicated to such a degree that he was incapable of voluntarily, knowingly, and intelligently waiving his Miranda rights (see, People v Gadson, 239 AD2d 924, lv denied 90 NY2d 905; People v Gagliardi, 232 AD2d 879, 880; People v Morales, 228 AD2d 525, lv denied 88 NY2d 1070; People v Shabaz, 173 AD2d 498, 499, lv denied 79 NY2d 923; see generally, People v Schompert, 19 NY2d 300, 305-307, cert denied 389 US 874). (Appeal from Judgment of Wayne County Court, Parenti, J. — Attempted Assault, 2nd Degree.) Present— Denman, P. J., Green, Wisner, Balio and Fallon, JJ.