Opinion
June 7, 1991
Appeal from the Onondaga County Court, Mulroy, J.
Present — Dillon, P.J., Doerr, Balio, Lawton and Davis, JJ.
Judgment unanimously reversed on the law, motion granted, and new trial granted. Memorandum: County Court, after a hearing, suppressed oral statements made by defendant to police prior to administration of Miranda warnings, but denied defendant's motion to suppress oral and written statements made after the warnings were given. Custodial interrogation of defendant was continuous, punctuated only by administration of the warnings. Because there was no pronounced break between the pre- and post- Miranda statements, the court erred in failing to suppress all of the statements given by defendant to the police (see, People v Bethea, 67 N.Y.2d 364; People v Chapple, 38 N.Y.2d 112; People v Graves, 158 A.D.2d 916, lv denied 76 N.Y.2d 735). The error was not harmless, particularly in light of the prosecution's reliance upon the videotaped statement to rebut defendant's insanity defense (see, People v DeGelleke, 144 A.D.2d 978, lv denied 73 N.Y.2d 920).
County Court also erred by instructing the jury, absent a request from defendant, that no inference should be drawn from defendant's failure to testify (see, People v Koberstein, 66 N.Y.2d 989; People v Smith, 170 A.D.2d 1040).