PEOPLE v. HICKS, 69 N.Y.2d 969 (1987)

509 N.E.2d 343, 516 N.Y.S.2d 648

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KEVIN HICKS, Appellant.

Court of Appeals of the State of New York.
Decided May 5, 1987

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Howard Goldfluss, J.

Stanley Levine for appellant.

Page 970

Mario Merola, District Attorney (Albert Ceva of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed.

On appeal defendant argues that the trial court erroneously denied his motion to suppress a statement he made to the police. The findings of the suppression court are that defendant and his brother voluntarily came to the police station; defendant was “gratuitously” given Miranda warnings; defendant asked the police “should I speak to a lawyer”; the police responded by asking him if he thought he was in trouble; defendant replied “no” and then gave a statement; and defendant was advised that he was not under arrest but was free to leave. The court expressly determined that defendant was not in custody since a reasonable man would not consider his freedom impaired in any significant way. The foregoing findings are undisturbed.

Defendant’s inquiry did not unequivocally inform the police of his intention to retain counsel. Under these circumstances, his right to counsel did not attach (see, People v Rowell, 59 N.Y.2d 727, 730; People v Johnson, 55 N.Y.2d 931; cf., People v Esposito, 68 N.Y.2d 961, 962).

We have considered defendant’s remaining contentions and find them either unpreserved, unreviewable, or without merit.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.