People v. Zito

• Decision Date: 20 October 1986
• Citation: 507 N.Y.S.2d 273,123 A.D.2d 799
• Parties: The PEOPLE, etc., Respondent, v. Vincent ZITO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 273

507 N.Y.S.2d 273

123 A.D.2d 799

The PEOPLE, etc., Respondent, v. Vincent ZITO, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 20, 1986.

Anthony J. Crecca, Staten Island, for appellant.

William L. Murphy, Dist. Atty., Staten Island (Karen F. McGee and Ralph H. Sheppard, of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered September 9, 1985, convicting him of criminal possession of a controlled substance in the fourth degree, criminal possession of a hypodermic instrument and operating a motor vehicle under the influence of drugs, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was for the suppression of his statements to the police.

ORDERED that the judgment is affirmed.

The statement of a voluntarily intoxicated individual is admissible where a totality of the circumstances show that he was capable of intelligently waiving his Miranda rights (see, People v. Nolan, 75 A.D.2d 828, 427 N.Y.S.2d 467). The mere fact that the defenda was intoxicated at the time he made his statement to police would not, without more, preclude the introduction of that statement against him. In order for such a statement to be deemed inadmissible a defendant must be so intoxicated that he is unable to comprehend the meaning of his statements (see, People v. Schompert, 19 N.Y.2d 300, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert. denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157).

In the instant case the evidence presented establishes that the defendant was responsive when read his Miranda rights. The fact that he nodded his head affirmatively after each right was read to him and then verbally agreed to speak with police indicated that he fully understood his rights (see, North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286). Moreover, his comments to police concerning his condition and concerns following the car accident also support a finding that he voluntarily waived his rights.

In any event, the statements in question were not elicited through a custodial interrogation or improper police conduct. In fact, the defendant's statement was a spontaneous comment made after a police officer responded to a question posed to him by defendant. Accordingly, the defendant's statement was properly admitted (see, People v. Bell, 63 N.Y.2d 796, 481 N.Y.S.2d 324, 471 N.E.2d 137).

Further, although a defendant may raise a right to counsel claim for the first time on appeal (see, People v. Cullen, 50 N.Y.2d 168, 428 N.Y.S.2d 456, 405 N.E.2d 1021; ...