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

The PEOPLE of the State of New York, Respondent, v. Anthony ERVIN, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., HURLBUTT, FAHEY, PERADOTTO, AND PINE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of attempted rape in the first degree (Penal Law §§ 110.00, 130.35[1] ).   We note at the outset that the evidence is legally sufficient to support the conviction and that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We agree with defendant, however, that there is a reasonable view of the evidence by which the jury could have found that he established by a preponderance of the evidence that, although he had completed his commission of the crime of attempted rape, he abandoned his criminal effort to complete the crime of rape “under circumstances manifesting a voluntary and complete renunciation of his criminal purpose” (§ 40.10 [3];  see People v. Taylor, 80 N.Y.2d 1, 12, 586 N.Y.S.2d 545, 598 N.E.2d 693;  People v. Dolan, 51 A.D.3d 1337, 1339, 858 N.Y.S.2d 490).   We thus agree with defendant that reversal is required based on the refusal of the trial court to charge the affirmative defense of renunciation (see § 40.10).

 We further agree with defendant that the suppression court, a different Supreme Court Justice from the trial justice, erred in refusing to suppress a statement made by defendant in the police vehicle while en route to the police station and in refusing to suppress his written statement made at the police station after he had waived his Miranda rights.   The evidence presented at the suppression hearing establishes that defendant was in custody in the police vehicle when the arresting officer asked him questions about his life and his church (see People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239;  People v. Yukl, 25 N.Y.2d 585, 589, 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), and the People failed to establish that the arresting officer's questions did not constitute interrogation or its functional equivalent (see Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297;  People v. Ferro, 63 N.Y.2d 316, 321, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717).   Although defendant waived his Miranda rights prior to questioning at the police station by a different police officer, the arresting officer was present throughout that questioning and again asked defendant about his life and his church.   We conclude that there was not “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;  see People v. Bethea, 67 N.Y.2d 364, 366, 502 N.Y.S.2d 713, 493 N.E.2d 937;  cf. Paulman, 5 N.Y.3d at 131, 800 N.Y.S.2d 96, 833 N.E.2d 239).

 We note that the trial court erred in failing to comply with CPL 530.13 (former [4] ) in setting the expiration of the date of the order of protection.   The date set by the court is not the greater of five years from the date of conviction or three years from the expiration of the determinate sentence imposed, taking into account jail time credit (see CPL 530.13 [former (4) ] ).   In light of our determination that a new trial is warranted, we do not address defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, those parts of the motion seeking to suppress defendant's statement made while en route to the police station and defendant's written statement made at the police station are granted and a new trial is granted.