PEOPLE v. SANTOS (2004)

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered January 7, 2002, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him, as a second violent felony offender, to a term of 20 years, unanimously affirmed.

 The court properly denied defendant's motion to suppress his videotaped statement since it was sufficiently attenuated from the taint of a warrantless arrest made in violation of Payton v. New York (445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639).   The videotaped statement to an Assistant District Attorney was taken about six hours after the arrest and was made after Miranda warnings and waivers.   There was also a substantial break of more than three hours between an earlier statement to a detective, which the court suppressed, and the videotaped statement, which was conducted by a different interrogator (see People v. Chen Ren Jie, 280 A.D.2d 301, 720 N.Y.S.2d 135, lv. denied 96 N.Y.2d 798, 726 N.Y.S.2d 376, 750 N.E.2d 78).   The record also supports the court's finding that the Payton violation was not flagrant.

 The court properly denied defendant's request for a missing witness charge as to the detective who took defendant's initial written statement, which had been suppressed but which was nevertheless elicited by defendant at trial as a tactical device.   The court correctly concluded that the witness could not provide any noncumulative testimony (see People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583).