Opinion
No. KA 05-00309.
April 25, 2008.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), rendered January 13, 2005. The judgment convicted defendant, upon his plea of guilty, of attempted sexual abuse in the first degree (two counts).
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JESSICA BIRKAHN HOUSEL OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Smith, Fahey, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of two counts of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65), defendant contends that Supreme Court erred in refusing to suppress the third of three statements that he made to the police. We reject that contention. The record establishes that, shortly after defendant was taken into police custody, he was questioned by a police officer and made admissions in response to those questions. Before he was transported to the police station, he reiterated those admissions to another officer. No Miranda warnings preceded those statements and, in the ensuing hour, defendant was transported to the police station. Miranda warnings were then administered, after which defendant gave the third statement that he seeks to suppress. Upon a review of the factors set forth in People v Paulman ( 5 NY3d 122, 130-131), including the time between the Miranda violation and the third statement, the change in location, the fact that "defendant exhibited a willingness to provide an explanation of his conduct and [the fact that], once at the police [station], he never expressed any reluctance to discuss the allegations" ( id. at 131; see People v White, 10 NY3d 286), we conclude that there was "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 Chappie, 38 NY2d 112, 115).
We have considered defendant's remaining contention and conclude that it is without merit.