Opinion
February 16, 2000
Appeal from Judgment of Onondaga County Court, Mulroy, J. — Attempted Murder, 2nd Degree.
PRESENT: GREEN, A. P. J., PINE, PIGOTT, JR., AND SCUDDER, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant was convicted following a plea guilty of attempted murder in the second degree (Penal Law § 110.00, 125.25 Penal [1]). Defendant contends that County Court erred denying his motion to suppress various inculpatory statements made to police following his arrest. We agree with defendant that he was under arrest when he was placed in handcuffs by a sheriff's deputy at his house ( see, People v. Battaglia, 56 N.Y.2d 558, revg on dissenting opn of Hancock, Jr., J. at 82 A.D.2d 389, 395-397; see generally, People v. Yukl, 25 N.Y.2d 585, 589, rearg denied 26 N.Y.2d 883, cert denied 400 U.S. 851; cf., People v. Hicks, 68 N.Y.2d 234) and that the deputy did not have probable cause to effectuate the arrest ( see generally, People v. Carrasquillo, 54 N.Y.2d 248, 254; cf., People v. Willsey, 144 A.D.2d 106, lv denied 73 N.Y.2d 985). We conclude, however, that defendant's statements were sufficiently attenuated from the illegal arrest to be purged of the taint created by the illegality ( see, People v. Conyers, 68 N.Y.2d 982, 983; People v. Rogers, 52 N.Y.2d 527, 532-533 , rearg denied 54 N.Y.2d 753, cert denied 454 U.S. 898, reh denied 459 U.S. 898; People v. Jones, 151 A.D.2d 695, lv denied 74 N.Y.2d 897). "Sufficient attenuation to avoid application of the exclusionary rule has been found when the linkage between the police misconduct and that evidence is interrupted by intervening events * * * or becomes overly extended and weakened by passage of time" ( People v. Stith, 69 N.Y.2d 313, 317-318 [citations omitted]). Here, the inculpatory statements were made approximately five hours after the arrest ( see, People v. Herner, 212 A.D.2d 1042, 1044, lv denied 85 N.Y.2d 974; People v. Jackson, 178 A.D.2d 438, 439; People v. Jones, supra, at 696). Additionally, there were significant intervening circumstances between the time of the arrest and the statements, namely, the police independently learned that the victim, defendant's mother, believed that defendant had committed the crime and defendant was read his Miranda rights shortly after he was arrested ( see, People v. Jackson, supra, at 439 ; People v. Jones, supra, at 696). Finally, we conclude that the actions of the police were not so egregious as to warrant suppression.
We have considered defendant's remaining contention and conclude that it is without merit.