Opinion
May 18, 1987
Appeal from the Supreme Court, Queens County (Leahy, J.).
Ordered that the judgment is affirmed.
We find no merit to the defendant's contention that the second and third statements made by him to the police, though preceded by full Miranda warnings, were nonetheless tainted by his earlier statement that was suppressed. There was no evidence adduced at the suppression hearing to support the defendant's contention that the two later statements were involuntarily given on constraint of his first statement (the "cat-out-of-the-bag" theory) (see, People v. Tanner, 30 N.Y.2d 102, 106-107); nor can the later two statements be considered the product of "a single continuous chain of events", as the defendant was not subject to continuous and custodial interrogation and was free to leave until the second statement was given (see, People v. Bethea, 67 N.Y.2d 364; People v. Chapple, 38 N.Y.2d 112, 114-115).
Turning to merits of the conviction, the defendant's knowledge, as related by him during his videotaped statements that his accomplices who actually committed the homicidal act were armed, virtually precluded any chance of successfully raising the affirmative defense to felony murder (see, Penal Law § 125.25 [c]). Accordingly, we find no merit to the defendant's contention that the failure of his trial counsel to argue this defense deprived him of effective assistance of counsel. Brown, J.P., Rubin, Lawrence and Kooper, JJ., concur.