PEOPLE v. CHAMPION (2000)

 Defendant appeals from a judgment convicting him after a jury trial of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) and two counts of burglary in the first degree (Penal Law § 140.30[2], [3] ).   We agree with defendant that County Court erred in denying that part of his motion seeking suppression of his statements to the police.   To be effective, Miranda warnings must precede custodial interrogation of a suspect.  “Later is too late, unless there is 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. Chapple, 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 341 N.E.2d 243;  see, People v. Bethea, 67 N.Y.2d 364, 502 N.Y.S.2d 713, 493 N.E.2d 937).   Before receiving Miranda warnings, defendant made incriminating statements regarding the subject crimes in response to custodial interrogation.   Approximately 30 minutes later, the same officer administered Miranda warnings to defendant and immediately continued his interrogation of defendant, who spoke freely regarding the details of the subject crimes.   The court erred in refusing to suppress the later statements.   There was no “definite, pronounced break in the interrogation” (People v. Chapple, supra, at 115, 378 N.Y.S.2d 682, 341 N.E.2d 243), and thus “the warnings administered before the later statements were insufficient to protect [defendant's] rights” (People v. Bethea, supra, at 368, 502 N.Y.S.2d 713, 493 N.E.2d 937).   However, the error in admitting those statements is harmless beyond a reasonable doubt (see, People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 The court properly denied without a hearing that part of the motion of defendant seeking suppression of a list of items used in the commission of the crime that were seized from his residence.   Defendant's allegation that the prosecution witness who discovered the list was acting as an agent of the police in securing it was speculative and thus insufficient to require a hearing (see generally, People v. Hightower, 85 N.Y.2d 988, 989-990, 629 N.Y.S.2d 164, 652 N.E.2d 910;  People v. Mendoza, 82 N.Y.2d 415, 421-422, 604 N.Y.S.2d 922, 624 N.E.2d 1017;  People v. Palmeri, 272 A.D.2d 968, 710 N.Y.S.2d 487).

 Defendant failed to preserve for our review his contention that, in the absence of a pretrial ruling following a hearing to determine the admissibility of prior bad acts (see, People v. Molineux, 168 N.Y. 264, 293-294, 61 N.E. 286), the court erred in admitting testimony on direct examination concerning defendant's obsessive behavior toward the victim and testimony on rebuttal concerning prior threats by defendant to kill his first wife under circumstances similar to those with respect to the subject crimes.   Defense counsel did not seek a final ruling on the admissibility of that testimony, nor did he object to that testimony at trial despite his indication to the court that he would defer his objection until hearing the foundation therefor during the trial.   In any event, we conclude that the testimony at issue was admissible to demonstrate defendant's motive and intent in attacking the victim (see, People v. Guiteau, 267 A.D.2d 1094, 701 N.Y.S.2d 230) and to disprove defendant's insanity defense (see, People v. Santarelli, 49 N.Y.2d 241, 248-249, 425 N.Y.S.2d 77, 401 N.E.2d 199, rearg. denied 49 N.Y.2d 918, 428 N.Y.S.2d 1028, 405 N.E.2d 712).

There is no merit to the contention that defendant was denied effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The sentence is legal and is neither unduly harsh nor severe.   We have reviewed defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: