People v Dillhunt
2007 NY Slip Op 05324 [41 AD3d 216]
Decided on June 14, 2007
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 June 14, 2007
Mazzarelli, J.P., Sullivan, Buckley, Sweeny, Catterson, JJ.

1343
Ind. 6844/03

[*1]The People of the State of New York, Respondent,

v

William Dillhunt, Defendant-Appellant.





Richard M. Greenberg, Office of the Appellate Defender, New
York (Eunice C. Lee of counsel), and Fried, Frank, Harris,
Shriver & Jacobson LLP, New York (Sloan S.J. Johnston of
counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Julie
Paltrowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered August 22, 2005, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of 4 years, unanimously affirmed.

The court properly denied defendant's suppression motion. The hearing record establishes that defendant's statements made prior to Miranda warnings were not the product of custodial interrogation, because a reasonable innocent person in defendant's position would not have thought he was in custody (see People v Yukl, 25 NY2d 585 [1969], cert denied 400 US 851 [1970]). Defendant voluntarily accompanied the police to the precinct; although in requesting defendant's presence a detective expressed his own "need" to speak to defendant at that location,
the detective clearly expressed a request and not a direction. At the precinct, the police kept defendant unhandcuffed and unrestrained, and questioned him in a non-threatening manner for half an hour. The fact that the detective showed defendant a police report implicating him in the assault at issue did not, under all the circumstances, render the questioning custodial, since a reasonable person in defendant's situation would have believed that the police were still in the process of gathering information about the alleged incident prior to taking any action. "Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest" (Stansbury v California, 511 US 318, 325 [1994]).

The court properly exercised its discretion in denying defendant's mistrial motion based on the People's summation. The challenged portions of the People's summation do not warrant reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). To the extent that there were any improprieties, they did not deprive defendant of a fair trial. In most of these instances, the court provided a sufficient remedy by sustaining objections, after which defendant [*2]
did not request any curative instructions.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2007

CLERK