AD4 order dated July 6, 2012, affirming judgment of conviction. Decision below: 98 A.D.3d 356, 948 N.Y.S.2d 471. Fahey (AD dissenter), J., granted leave August 20, 2012.

ISSUE PRESENTED: Whether the police questioning of defendant without first giving him Miranda warnings and despite his invocation of the right to counsel was justified by the emergency exception (People v. Krom, 61 N.Y.2d 187), where the police were not aware – according to the dissent – that a victim needed their assistance.

Issue Before the Court: Did the emergency exception apply to relieve the police of giving Miranda warnings before questioning the defendant, under the peculiar circumstances of the case?

Held: Finding it a mixed question, the Court holds that there is record support for the determination by the lower court that the emergency doctrine justified the police questioning. Even though the police didn’t know for certain that anyone had been hurt, they encountered a man walking along a public road with fresh, wet blood on him, and were met with inconsistent responses by the defendant, who refused to state whether the blood was human or animal. "Under these circumstances, it was reasonable for the police to believe that a person may have been seriously injured and in need of imminent emergency assistance." Nor, after the emergency, did the police wrongly use the defendant’s acquaintance, as a "psychological ploy" that could be considered the functional equivalent of interrogation or a subterfuge to circumvent the right to counsel which the defendant had invoked.

CAL Observes: While concurring in the majority’s holding with respect to the emergency doctrine, Judge Rivera disagreed with respect to the actions involving the defendant’s acquaintance: "The clearly opportunistic use of the situation cannot be reconciled with defendant's right to speak with an attorney."