v.

DANIEL LYON, Appellant.

Submitted By: Jeremy L. Goldberg (counsel for the appellant); Delores S. Heredia (counsel for the respondent)

Judgment Affirmed: Andrew J. DiPaola, P.J.; Louis C. Palella & Howard E. Levitt, JJ.

DECISION OF THE COURT

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Appeal by defendant from a judgment of the District Court, Nassau County (S. Scharoff, J. at suppression hearing; A. Marano, J. at plea and sentence) rendered on August 27, 1997, convicting him on his plea of guilty of driving while intoxicated and imposing sentence.

Judgment of conviction unanimously affirmed.

As the People concede, defendant's purported waiver of his right to appeal was ineffective, since the court failed to make any inquiry to ensure that the waiver was knowing and voluntary (People v. Seaberg, 74 NY2d 1).

Defendant also contends that the court erred in failing to make proper factual findings when denying his motion to suppress and that in any event the motion was improperly denied. <SM-2>

Where a court fails to make proper findings pursuant to CPL 710.60(6), an intermediate appellate court may make its own findings when the record permits it (People v. Neely, 219 AD2d 444; People v. Lewis, 172 AD2d 1020). At the hearing, a police officer testified that he proceeded to the scene of a motor vehicle accident in a King Kullen parking lot in response to a radio call. Upon arriving, he saw the defendant lying on the ground alongside a damaged vehicle. He was advised by witnesses at the scene that defendant had fallen out of the car. He approached the vehicle to assess defendant's physical condition and determined that he was conscious and alert. However, he also found defendant's speech to be slurred, his eyes glassy and detected an odor of alcoholic beverage "in the area." The officer asked what had happened and the defendant said that he had been going to or coming from the laundry when he was struck in the rear. Neither police interrogation nor custody was involved here. The officer properly questioned defendant in an effort to clarify the situation which presented itself, since such questioning does not constitute "interrogation" (People v. Hoffman, 41 NY2d 29; People v. Palmiere, 124 AD2d 1016). Moreover, even assuming that the officer intended to arrest the defendant when he detected the odor of alcohol, this fact would not render the environment <SM-3> custodial (Berkemer v. McCarty, 468 US 420; see also, Pennsylvania v. Bruder, 488 US 9). Since both police interrogation and police custody are necessary in order to trigger the requirement of giving a suspect Miranda warnings, the hearing court properly denied defendant's motion to suppress his statements (People v. Hoffman, supra).

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