IN RE: RICARDO S.

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

IN RE: RICARDO S., A Person Alleged to Be a Juvenile Delinquent, Appellant. Presentment Agency.

Decided: August 29, 2002

WILLIAMS, P.J., TOM, ROSENBERGER, WALLACH and MARLOW, JJ. Thomas S. Hur, for Appellant. Fay Ng, for Presentment Agency.

Order of disposition, Family Court, Bronx County (Harold Lynch, J.), entered May 17, 2000, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination, same court and Justice, entered December 13, 1999, that appellant had committed an act that, if committed by an adult, would constitute burglary in the third degree, and placed him on probation for a period of 18 months, unanimously affirmed, without costs.

Appellant, who was 15 years old at the time of the events in question, challenges the Family Court's denial of his motion to suppress a pre-arrest oral statement he gave to three police officers who, without informing appellant of his Miranda rights, questioned him in his home about a burglary that occurred four days before, as well as a post-arrest written statement he subsequently made in the police station.

 To the extent the Family Court may have concluded that the police officer's questioning of appellant in his home was not a custodial interrogation requiring Miranda warnings because appellant was not placed under arrest prior to the questioning, the conclusion was erroneous.   Miranda's safeguards are triggered whenever there is a custodial interrogation (see, Matter of Rennette B., 281 A.D.2d 78, 82, 723 N.Y.S.2d 31).   The test of whether questioning by police is custodial is not whether a person is under arrest, but, rather, whether a reasonable person similarly situated to the defendant, and innocent of any crime, would have thought that his freedom was significantly restricted (Matter of Kwok T., 43 N.Y.2d 213, 220, 401 N.Y.S.2d 52, 371 N.E.2d 814;  People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied, 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;  Rennette B., 281 A.D.2d 78, 85, 723 N.Y.S.2d 31).   We are not prepared to say that a reasonable 15–year–old, confronted by three police officers conducting the type of questioning that occurred here, even in his own home with his mother present, would have felt free to leave or that such questioning was not custodial.

 However, appellant's initial oral statement was duplicated by his later written statement, which Family Court found was made in the police station after appropriate Miranda warnings had been given, attenuated from appellant's earlier statement and not part of a continuous chain of events.   There is no basis for this Court to overturn Family Court's credibility findings that underlie those determinations (see, People v. Chapple, 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 341 N.E.2d 243) or to upset its ruling that the post-arrest, written statement was admissible.   Thus, the error in admitting the oral statement was harmless beyond a reasonable doubt (see, People v. Sanders, 56 N.Y.2d 51, 66, 451 N.Y.S.2d 30, 436 N.E.2d 480).