PEOPLE v. HERON (1997)

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered May 25, 1995, convicting defendant, upon his plea of guilty, of robbery in the first degree and criminal possession of a controlled substance in the second degree, and sentencing him to concurrent terms of 8 1/3 to 25 years and 8 1/3 years to life, respectively, unanimously affirmed.

 Defendant's motions to suppress a written statement and identification testimony were properly denied.   The arresting officer improperly asked defendant, while being transported to the precinct, “why did you guys do it”, without first having provided Miranda warnings, and defendant's oral statement in response was suppressed.   However, the motion court properly declined to suppress defendant's written statement, made later at the precinct.   At the precinct, there was a 30-minute interval during which defendant was placed in a holding cell and did not converse with any police officers, another interrogating officer read defendant his Miranda rights before soliciting any information, and the arresting officer was not present during that interrogation and did not communicate defendant's oral statement to anyone (see, People v. Vientos, 164 A.D.2d 122, 127, 561 N.Y.S.2d 443, affd 79 N.Y.2d 771, 579 N.Y.S.2d 633, 587 N.E.2d 271;  People v. Hawthorne, 160 A.D.2d 727, 553 N.Y.S.2d 799).

 The fillers selected for defendant's lineup were reasonably similar in appearance to defendant, and the lineup was therefore not unduly suggestive (see, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   We find that there was no necessity for testimony by the identifying witness.

MEMORANDUM DECISION.