Opinion
October 27, 1986
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress statements is granted, and a new trial is ordered.
While in custody, the defendant made two statements after having been given Miranda warnings but within minutes of making an unwarned statement in response to a police officer's inquiry. The unwarned statement was suppressed by the hearing court. Under People v Chapple ( 38 N.Y.2d 112), which, despite Oregon v Elstad ( 470 U.S. 298), remains the law of New York (People v Bethea, 67 N.Y.2d 364), all of the statements should have been suppressed (see, People v Mayorga, 100 A.D.2d 853). The trial court's comments, at this nonjury trial, establish that one of the statements which should have been suppressed was an important factor in its finding of guilt, and therefore the error in refusing to suppress it was not harmless (see, People v Rivera, 57 N.Y.2d 453). Mollen, P.J., Lazer, Bracken and Kooper, JJ., concur.