PEOPLE v. THURMAN (1999)

 County Court properly denied without a hearing that part of the motion of defendant seeking suppression of physical evidence seized from his girlfriend's residence.   Defendant's motion to suppress did not contain sworn allegations of fact sufficient to raise an issue of fact with respect to standing (see, CPL 710.60[3][b];  People v. Whitfield, 81 N.Y.2d 904, 906, 597 N.Y.S.2d 641, 613 N.E.2d 547).   Further, in opposition to the motion, the People submitted the unequivocal Grand Jury testimony of defendant that he did not reside at the searched premises, thereby establishing that defendant was without standing to contest the legality of the search and seizure (see, People v. Wesley, 73 N.Y.2d 351, 358-359, 540 N.Y.S.2d 757, 538 N.E.2d 76;   People v. Daniel, 152 A.D.2d 742, 743, 544 N.Y.S.2d 194, lv. denied 75 N.Y.2d 769, 551 N.Y.S.2d 911, 551 N.E.2d 112).

 The court also properly denied that part of the motion of defendant seeking suppression of the statement he made to a police officer at the Public Safety Building after receiving and waiving his Miranda rights.   That statement was preceded by a statement made by defendant without the benefit of Miranda warnings prior to his arrest, which statement was precluded because of the People's failure to provide notice pursuant to CPL 710.30(3).   Even assuming, arguendo, that warnings were required for the first statement, we conclude that the later statement is not subject to suppression under the “cat-out-of-the-bag” theory because there was no evidence adduced at the Huntley hearing that the later statement was tainted by the earlier one (see, People v. Tanner, 30 N.Y.2d 102, 105-106, 331 N.Y.S.2d 1, 282 N.E.2d 98;  People v. O'Hanlon, 252 A.D.2d 670, 675 N.Y.S.2d 404, lv. denied 92 N.Y.2d 951, 681 N.Y.S.2d 481, 704 N.E.2d 234;  People v. Alaire, 148 A.D.2d 731, 737-738, 539 N.Y.S.2d 468).   Nor is suppression warranted under the Chapple-Bethea rule (People v. Chapple, 38 N.Y.2d 112, 378 N.Y.S.2d 682, 341 N.E.2d 243;  People v. Bethea, 67 N.Y.2d 364, 502 N.Y.S.2d 713, 493 N.E.2d 937) because the second statement was not the product of continuous interrogation (see, People v. Benedetto, 248 A.D.2d 480, 669 N.Y.S.2d 383, lv. denied 92 N.Y.2d 878, 678 N.Y.S.2d 25, 700 N.E.2d 563;  People v. McIntyre, 138 A.D.2d 634, 637, 526 N.Y.S.2d 217, lv. denied 72 N.Y.2d 959, 534 N.Y.S.2d 673, 531 N.E.2d 305).

Judgment unanimously affirmed.

MEMORANDUM: