PEOPLE v. HOTCHKISS (1999)

Judgment, Supreme Court, New York County (Michael Obus, J.), rendered August 1, 1996, convicting defendant, after a jury trial, of murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of imprisonment of 25 years to life, 15 years, and 7 years, respectively, unanimously affirmed.

 Defendant's claim that his second and third statements should have been suppressed because he was effectively denied his right to counsel prior to the second statement and because there was insufficient attenuation between the statements, is unsupported by the record.   There was no evidence that defendant's arraignment was “imminent” or that there was an unnecessary delay in arraignment (see, People v. Hall, 158 A.D.2d 69, 80-81, 557 N.Y.S.2d 879, lv. denied 76 N.Y.2d 940, 563 N.Y.S.2d 69, 564 N.E.2d 679).   Rather, since the judicial process had not yet begun, the police properly conducted a second interview of defendant, notwithstanding the circumstance that the arrest processing had begun (see, People v. Wilson, 56 N.Y.2d 692, 451 N.Y.S.2d 719, 436 N.E.2d 1321), when it was discovered that defendant faced a more serious charge and that further investigation was warranted (see, People v. Quartieri, 171 A.D.2d 889, 891, 567 N.Y.S.2d 815, lv. denied 78 N.Y.2d 1079, 577 N.Y.S.2d 243, 583 N.E.2d 955).

 Contrary to defendant's alternative claim, there was no need for readministration of Miranda warnings before defendant's second statement, made after the Miranda rights had been administered and waived by defendant, not a novice to the criminal justice system (see, People v. Crosby, 91 A.D.2d 20, 29, 457 N.Y.S.2d 831, lv. denied 59 N.Y.2d 765, 464 N.Y.S.2d 1028, 451 N.E.2d 507).   Defendant remained in continuous custody, nothing occurred that would have induced defendant to believe he was no longer the focal point of the investigation, and there was no reason to believe that defendant “had forgotten or no longer understood his constitutional rights” (People v. Johnson, 49 A.D.2d 663, 665, 390 N.Y.S.2d 462, aff'd 40 N.Y.2d 882, 389 N.Y.S.2d 347, 357 N.E.2d 1002).   In this connection, as noted by the court, prior to defendant's third (videotaped) statement, he acknowledged that he had previously been advised of and understood his rights, was aware of his rights throughout the proceedings, and willingly waived them again.   Further, even if defendant's second statement were ruled inadmissible, his third statement, made approximately 4 hours after the second statement and preceded by administration and waiver of the Miranda rights, was sufficiently attenuated so that defendant would properly be considered to have been no longer under the influence of the prior questioning (see, People v. Rodriguez, 231 A.D.2d 477, 648 N.Y.S.2d 9, lv. denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994).  Since defendant's third statement repeated the essence of his second statement, in a detailed narrative of the events in question, any error in admitting his second statement would be harmless.

MEMORANDUM DECISION.