| N.Y. App. Div. | Mar 18, 1999
Judgments, Supreme Court, Bronx County (Frank Diaz, J.), rendered September 5, 1996, convicting defendant, after a jury trial, of murder in the second degree, and, upon his plea of guilty, of attempted assault in the first degree, and sentencing him to concurrent terms of 20 years to life and U/s to 4 years, respectively, unanimously affirmed.
The evidence supports the hearing court’s determination that defendant’s statements made prior to Miranda warnings were not the product of custodial interrogation, since a reasonable innocent person in defendant’s position would not have thought that he was in custody (People v Yukl, 25 NY2d 585, cert denied 400 U.S. 851" date_filed="1970-10-12" court="SCOTUS" case_name="Rodgers v. Texas">400 US 851; see also, Matter of Kwok T., 43 NY2d 213, 219-220). We conclude that it would have been unreasonable for defendant to assume that his admission to helping another person move the murder victim’s body a slight distance rendered the interview custodial. Such an assumption would have been inconsistent with the noncoercive circumstances of the interview, including the fact that the police continued to treat defendant as a witness rather than a suspect even after he made this admission. In any event, were we to find these statements to be inadmissible, we would find that defendant’s videotaped statement was attenuated as the result of a pronounced break in the interrogation (see, People v Dunkley, 200 AD2d 499, lv denied 83 NY2d 871). Concur — Sullivan, J. P., Lerner, Andrias and Saxe, JJ.