Opinion
November 15, 1985
Appeal from the Supreme Court, Monroe County, Kennedy, J.
Present — Dillon, P.J., Callahan, Denman, Boomer and Pine, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's statement was properly admitted into evidence as it was not obtained through exploitation of his illegal arrest. Defendant was arrested in his home on probable cause but without a warrant prior to the decision in Payton v New York ( 445 U.S. 573). He was placed in a police vehicle, given his Miranda warnings and taken to police headquarters. He was placed in an interview room where he remained alone for two hours until the arrival of the officer in charge of the investigation. Upon the arrival of that officer, defendant was again informed of his constitutional rights and, for the first time, was questioned about the shooting of Thelma Barnes. Defendant then made a statement admitting that he had shot Thelma Barnes but claiming that it was an accident. Although the rule of Payton applies retrospectively, at the time defendant was arrested, an arrest without a warrant was permissible under New York law. Thus the officers were not guilty of "conscious or flagrant misconduct requiring prophylactic exclusion" of defendant's statement (Rawlings v Kentucky, 448 U.S. 98, 110). Although administration of the Miranda warnings, per se, does not break the causal connection between the illegal arrest and the statement, it is an important factor to be considered in determining whether the statement is obtained through exploitation of the illegal arrest (see, Brown v Illinois, 422 U.S. 590, 603). Other factors to be considered are the proximity of the arrest and the confession, the presence of intervening circumstances and whether there has been any misconduct on the part of the police. Under the circumstances presented here, we find that defendant's statement was sufficiently attenuated to be admissible. In order to suppress defendant's statement, we would have to apply a "but for" rule which the Supreme Court specifically rejected in both Brown v Illinois (supra) and Rawlings v Kentucky (supra). This we decline to do (People v Miller, 105 A.D.2d 1127).
With respect to defendant's other contention, there is no reasonable view of the evidence under which a jury could conclude that defendant was guilty only of assault in the third degree.