Opinion
December 14, 1984
Appeal from the Livingston County Court, Houston, J.
Present — Hancock, Jr., J.P., Callahan, Green, O'Donnell and Moule, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment of conviction for burglary in the third degree, defendant argues that his motion to suppress a written confession made to the Livingston County Sheriff should have been granted because he was detained in custody without probable cause (see Dunaway v. New York, 442 U.S. 200) and because the Sheriff knew (see People v. Rogers, 48 N.Y.2d 167) or should have known (see People v. Bartolomeo, 53 N.Y.2d 225) of defendant's representation on a robbery charge pending in Erie County. There is no merit to the claims because it cannot be said that the hearing court's conclusion that defendant was not in custody at the time he confessed was erroneous as a matter of law (see People v Waymer, 53 N.Y.2d 1053, 1054; People v. Yukl, 25 N.Y.2d 585, 588, cert den 400 U.S. 851). If a suspect is not in custody, the Rogers-Bartolomeo rule does not apply (see People v Hauswirth, 89 A.D.2d 357, affd 60 N.Y.2d 904; People v. Torres, 97 A.D.2d 802, 804; cf. People v. Skinner, 52 N.Y.2d 24).