PEOPLE v. BUNGO

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

The PEOPLE of the State of New York, Respondent, v. Patrick J. BUNGO, Defendant-Appellant.

Decided: March 27, 2009

PRESENT:  SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ. Timothy P. Donaher, Public Defender, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Respondent.

Defendant appeals from a judgment convicting him after a jury trial of criminal contempt in the first degree (Penal Law § 215.51[c] ), for making contact with his ex-wife in violation of an order of protection.   We agree with defendant that his Miranda rights were violated, and thus that County Court erred in refusing to suppress two statements made by defendant to his parole officer.   The first statement was made by defendant after he had been arrested and was in custody but before he had received his Miranda warnings, and the statement was made in response to questions that were “ ‘likely to elicit an incriminating response’ ” (People v. Wearen, 19 A.D.3d 1133, 1134, 796 N.Y.S.2d 763, lv. denied 5 N.Y.3d 834, 804 N.Y.S.2d 48, 837 N.E.2d 747;  see People v. Evans, 294 A.D.2d 918, 919, 741 N.Y.S.2d 811, lv. dismissed 98 N.Y.2d 768, 752 N.Y.S.2d 8, 781 N.E.2d 920;  People v. Rifkin, 289 A.D.2d 262, 733 N.Y.S.2d 710, lv. denied 97 N.Y.2d 759, 742 N.Y.S.2d 620, 769 N.E.2d 366).   The second statement was made at the Monroe County jail, before any Miranda warnings had been administered.   The record establishes that it also was the result of custodial interrogation inasmuch as it “involve[d] the kind of inherently coercive atmosphere with which Miranda was most concerned” (People v. Alls, 83 N.Y.2d 94, 99, 608 N.Y.S.2d 139, 629 N.E.2d 1018, cert. denied 511 U.S. 1090, 114 S.Ct. 1850, 128 L.Ed.2d 474;  see People v. Vila, 208 A.D.2d 781, 617 N.Y.S.2d 495, lv. denied 85 N.Y.2d 867, 624 N.Y.S.2d 386, 648 N.E.2d 806;  People v. Connor, 157 A.D.2d 739, 550 N.Y.S.2d 34, lv. denied 76 N.Y.2d 732, 558 N.Y.S.2d 894, 557 N.E.2d 1190).

In light of our determination, we do not review defendant's remaining contention.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, those parts of the motion seeking to suppress statements made by defendant to his parole officer are granted and a new trial is granted.

MEMORANDUM: