Opinion
February 21, 1986
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Dillon, P.J., Callahan, Doerr, Boomer and Pine, JJ.
Judgment unanimously reversed, on the law, and as a matter of discretion in the interest of justice, defendant's motion to suppress granted, and defendant remanded to Supreme Court, Erie County, for further proceedings on the indictment. Memorandum: Defendant's motion to suppress his confession should have been granted (CPL 60.45 [b] [ii]; Bram v. United States, 168 U.S. 532). At the hearing on defendant's motion to suppress there was testimony from two special agents with the United States Treasury Department Bureau of Alcohol, Tobacco and Firearms to whom defendant made oral and written statements concerning his involvement in five robberies. One agent testified that he was investigating the sawed-off shotgun used in the robberies, and initially contacted defendant by telephone, at which time he advised defendant that if they got together that morning, defendant would not be placed under arrest and that after the meeting defendant would be free to go home and would sleep in his own bed that night. Defendant met with this agent and another agent for 15 minutes, and was told that he was not under arrest and was free to leave any time. Defendant was not given Miranda warnings. He admitted his involvement in one robbery at that meeting. Defendant met with the two agents later that same day, and they drove him to their offices at the Federal Building. Upon arrival, defendant was advised of his rights, and was told that he was not under arrest and could leave any time he wanted. Defendant executed a rights card, and at that meeting he signed a written statement detailing his involvement in five robberies. Defendant was told he was free to leave, and one of the two agents drove him to a hospital at his request. There was testimony by one of the agents that at the afternoon meeting, defendant was told that he would eventually be arrested "by whoever" and that since he was a cooperating witness the agent would see to it that no one would arrest defendant at his house, but he could turn himself in. Defendant was never told that the agents had no jurisdiction over the robberies.
In a written opinion, the suppression court found that the People proved beyond a reasonable doubt that the defendant's statements were voluntarily made, and the court denied the motion to suppress.
Although it appears that CPL 60.45 (2) (b) (ii) was not argued before the suppression court as a ground for suppression, and therefore, not properly preserved for our review, we reach it as a matter of discretion in the interest of justice (CPL 470.15 [c]). We find that under Bram v. United States (supra), defendant's confession cannot be deemed to have been voluntary, and, therefore, the motion to suppress should have been granted. There appears to be a divergence in the application of Bram, some courts holding that Bram is to be literally applied and others that a more qualified interpretation is appropriate (People v. Bay, 76 A.D.2d 592, 598-599, appeal dismissed 54 N.Y.2d 808). However, we do not find it necessary on these facts to draw such a distinction, as there clearly was a promise made to defendant that he would not be arrested (cf. People v. Taylor, 87 A.D.2d 771, affd 57 N.Y.2d 729; People v. Diaz, 77 A.D.2d 523, affd on mem below 54 N.Y.2d 967; People v. Vail, 90 A.D.2d 917). Defendant's plea must be vacated, the confession suppressed and the matter remitted for further proceedings. In view of our holding we do not reach the issue of whether defendant's sentence was harsh and excessive.