Judgment, Supreme Court, New York County (Carol Berkman, J. at suppression hearing; Robert Stolz, J. at jury trial and sentence), rendered February 20, 2007, convicting defendant of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
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.
Lippman, P.J., Tom, Buckley, Moskowitz, Renwick, JJ.
The court properly denied defendant's motion to suppress statements. Following a radio run, three police officers, defendant and the complainant were all standing together on a street. Immediately after the complainant accused defendant of stealing his wallet, an officer turned to defendant and asked "What's going on here?". Defendant replied that he was only helping the complainant to recover his wallet, which had been stolen and discarded by someone else. For several reasons, we reject defendant's argument that the officer was required to give Miranda warnings before asking "What's going on here?".
First, defendant was not in custody. A reasonable innocent person in defendant's position would not have thought he was in custody (see People v Yukl, 25 NY2d 585  cert denied 400 US 851 ), but rather "that the police were still in the process of gathering information about the alleged incident prior to taking any action." (see People v Dillhunt, 41 AD3d 216, 217 , lv denied 10 NY3d 764 ). Regardless of the questioning officer's unconveyed belief (see Stansbury v California, 511 US 318, 325 ) that defendant was a suspect and was not free to leave, none of the officers restrained defendant or did anything to suggest to him that his freedom of movement had been restricted in any way. Second, even assuming there was a seizure, it was no more than an investigatory stop that did not require Miranda warnings (see Berkemer v McCarty, 468 US 420, 439-440 ; People v Bennett, 70 NY2d 891 ). Finally, there was no interrogation requiring warnings because the officer's simple inquiry was made to clarify the situation (see People v Johnson, 59 NY2d 1014 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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