Opinion
April 13, 1987
Appeal from the Supreme Court, Suffolk County (Sherman, J.).
Ordered that the judgment is affirmed.
The defendant was arrested and subsequently charged with, inter alia, the attempted rape of a 63-year-old woman who co-owned a Lindenhurst tavern which the defendant had frequented for approximately two years prior to his arrest. The record reveals that the defendant was informed of his Miranda rights (Miranda v Arizona, 384 U.S. 436) at the time of his arrest. Thereafter, the defendant was taken to the police station and made certain statements in which he identified as his a knife found in the victim's automobile, where the alleged attempted rape occurred. The defendant's motion to suppress his oral statements was denied. After a nonjury trial the defendant was found guilty of attempted rape in the first degree.
Contrary to the People's contentions, there is nothing in the record which indicates that the defendant either expressly or impliedly waived his Miranda rights (see, People v Bretts, 111 A.D.2d 864; People v Schroder, 71 A.D.2d 907; see also, North Carolina v Butler, 441 U.S. 369). Accordingly, the hearing court should have suppressed the statements made by the defendant at the station house in response to police questioning (see, People v Campbell, 81 A.D.2d 300; People v Vigliotti, 75 A.D.2d 859; People v Schroder, supra). Nevertheless, on the record before us, we conclude that the admission of these statements was harmless beyond a reasonable doubt, as the proof of the defendant's guilt was overwhelming (see, People v Flecha, 60 N.Y.2d 766, 768; see also, People v Crimmins, 36 N.Y.2d 230; cf., People v Vigliotti, supra). The record reveals that the victim was acquainted with the defendant, who had frequented her tavern three or four times a week for a period of approximately two years. Moreover, although the defendant testified that he left the tavern alone, two witnesses testified that they observed him leave with the victim in her car. One of these witnesses saw the victim's car, with the defendant in it, turn into the parking lot where the attempted rape took place. There was, furthermore, a stipulation by the parties at trial that another witness, if called to testify, would state that at the time of the incident he heard a woman's scream emanating from the parking lot. In short, a realistic appraisal of the evidence confirms that the admission of the defendant's statements was harmless error since there was no reasonable probability that their suppression would have altered the result of the trial (see, People v Flecha, supra, at 768; People v Sanders, 56 N.Y.2d 51, 66-67, rearg denied 57 N.Y.2d 674; cf., People v Crampton, 107 A.D.2d 998, 999-1000).
We have examined the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Brown, Neihoff and Kooper, JJ., concur.