Defendant's suppression motion was properly denied. Regardless of which party is deemed to have the burden of proof on the issue of custodial interrogation (see, People v. Alls, 83 N.Y.2d 94, 102, 113), the record establishes that defendant was not in custody nor was he interrogated at the time he made the first statement at issue (see, People v. Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851; People v. Ferro, 63 N.Y.2d 316,cert denied 472 U.S. 1007; People v. Huffman, 41 N.Y.2d 29). The record also supports the hearing court's conclusion that his second statement was spontaneously blurted out and was not the product of any interrogation. Accordingly, both of these statements were admissible despite the absence of Miranda warnings.
The court properly exercised its discretion in denying defendant's motion to reopen the suppression hearing to permit the testimony of a previously unavailable witness who would allegedly testify that defendant was in handcuffs at the time he made the first statement at issue. This was not an "additional pertinent fact" (CPL 710.40) that defendant could not have discovered with reasonable diligence before the determination of the original motion, since defendant must have been aware of whether or not he was handcuffed (see, People v. Hankins, 265 A.D.2d 572, lv denied 94 N.Y.2d 880; People v. Mitchell-Benetiz, 168 A.D.2d 994, lv denied 77 N.Y.2d 909). Moreover, at the time of the hearing, defendant had an available witness who would have been knowledgeable on this issue.
The court properly denied defendant's request for a missing witness charge with respect to a police officer who did not hear defendant's second statement despite being nearby (see, People v. Dianda, 70 N.Y.2d 894).
We perceive no basis for reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.