PEOPLE v. SMITH

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Christopher P. SMITH, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, KEHOE and BALIO, JJ. Philip Rothschild, Amherst, for defendant-appellant. James P. Maxwell, Syracuse, for plaintiff-respondent.

On appeal from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[1] ), defendant contends that Supreme Court should have suppressed his written statements on the ground that those statements, although preceded by Miranda warnings, were obtained by exploitation of defendant's earlier oral statement, which the court suppressed on Miranda grounds.

The initial statement was obtained on the street at the time of arrest.   Police thereafter informed defendant of his Miranda rights and, after defendant waived those rights, elicited his written confession at the police station beginning about 30 minutes after the arrest.   The differences in time (see, People v. Dunkley, 200 A.D.2d 499, 500, 606 N.Y.S.2d 638, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301;  People v. Hawthorne, 160 A.D.2d 727, 728-729, 553 N.Y.S.2d 799) and place (see, People v. Stackhouse, 160 A.D.2d 822, 823-824, 553 N.Y.S.2d 854, lv. denied 76 N.Y.2d 865, 560 N.Y.S.2d 1005, 561 N.E.2d 905;  People v. Jacobs, 136 A.D.2d 796, 797, 523 N.Y.S.2d 256) constitute 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;  cf., People v. English, 73 N.Y.2d 20, 24, 537 N.Y.S.2d 987, 534 N.E.2d 1195;  People v. Bethea, 67 N.Y.2d 364, 367-368, 502 N.Y.S.2d 713, 493 N.E.2d 937).   Moreover, the initial violation of defendant's rights consisted of a single question and answer without benefit of Miranda warnings (see, People v. Bolus, 185 A.D.2d 1007, 587 N.Y.S.2d 446, lv. denied 81 N.Y.2d 785, 594 N.Y.S.2d 731, 610 N.E.2d 404;  People v. Holmes, 145 A.D.2d 908, 908-909, 536 N.Y.S.2d 289, lv. denied 74 N.Y.2d 897, 548 N.Y.S.2d 430, 547 N.E.2d 957) in which defendant denied guilt.   Thus, that earlier “unwarned statement cannot be said to have committed him to later confessing the crime” (People v. Holmes, supra, at 909, 536 N.Y.S.2d 289;  see, People v. Walker, 267 A.D.2d 778, 780, 701 N.Y.S.2d 166, lv. denied 94 N.Y.2d 926, 708 N.Y.S.2d 366, 729 N.E.2d 1165;  People v. McGriff, 149 A.D.2d 952, 540 N.Y.S.2d 85, lv. denied 74 N.Y.2d 814, 546 N.Y.S.2d 572, 545 N.E.2d 886).   Under the circumstances, the court properly determined that the taint of the initial illegality was dissipated and that the subsequent administration of Miranda warnings was sufficient to protect defendant's rights.

Judgment unanimously affirmed.

MEMORANDUM: