People v. Smith

Sep 29, 2000
Versions:275 A.D.2d 951
713 N.Y.S.2d 426
2000 N.Y. App. Div. LEXIS 9583

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [1]), defendant contends that Supreme Court should have suppressed his written statements on the ground that those statements, although preceded by Miranda warnings, were obtained by exploitation of defendant’s earlier oral statement, which the court suppressed on Miranda grounds.

The initial statement was obtained on the street at the time of arrest. Police thereafter informed defendant of his Miranda rights and, after defendant waived those rights, elicited his written confession at the police station beginning about 30 minutes after the arrest. The differences in time (see, People v Dunkley, 200 AD2d 499, 500, lv denied 83 NY2d 87l; People v Hawthorne, 160 AD2d 727, 728-729) and place (see, People v Stackhouse, 160 AD2d 822, 823-824, lv denied 76 NY2d 865; People v Jacobs, 136 AD2d 796, 797) constitute such a “definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning” (People v *952Chapple, 38 NY2d 112, 115; cf., People v English, 73 NY2d 20, 24; People v Bethea, 67 NY2d 364, 367-368). Moreover, the initial violation of defendant’s rights consisted of a single question and answer without benefit of Miranda warnings (see, People v Bolus, 185 AD2d 1007, lv denied 81 NY2d 785; People v Holmes, 145 AD2d 908, 908-909, lv denied 74 NY2d 897) in which defendant denied guilt. Thus, that earlier “unwarned statement cannot be said to have committed him to later confessing to the crime” (People v Holmes, supra, at 909; see, People v Walker, 267 AD2d 778, 780, lv denied 94 NY2d 926; People v McGriff, 149 AD2d 952, lv denied 74 NY2d 814). Under the circumstances, the court properly determined that the taint of the initial illegality was dissipated and that the subsequent administration of Miranda warnings was sufficient to protect defendant’s rights. (Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. — Attempted Robbery, 1st Degree.) Present — Pigott, Jr., P. J., Pine, Wisner, Kehoe and Balio, JJ.