Opinion
March 17, 1995
Appeal from the Jefferson County Court, Clary, J.
Present — Pine, J.P., Lawton, Wesley, Callahan and Doerr, JJ.
Judgment unanimously reversed on the law, plea vacated, motion to suppress granted in part and matter remitted to Jefferson County Court for further proceedings on the indictment. Memorandum: In light of a concession by the People at the Huntley hearing that defendant was in custody from approximately 5:30 A.M., the outset of his encounter with law enforcement officials, the suppression court erred in holding that defendant was not in custody until 7:30 A.M. Consequently, statements defendant made between 5:30 A.M. and 7:30 A.M. should have been suppressed, as well as statements he made after 7:30 A.M. Because we cannot say with certainty that the erroneous suppression ruling played no part in defendant's decision to plead guilty, the plea must be vacated (see, People v. Coles, 62 N.Y.2d 908, 910; People v. Harris, 48 N.Y.2d 208, 215; People v Grant, 45 N.Y.2d 366, 379-380).
The suppression court properly concluded that defendant's statement to Correction Officer Storey was spontaneous because Storey's question concerning defendant's physical condition was not one that would be reasonably contemplated to elicit an incriminating response (see, People v. Rivers, 56 N.Y.2d 476, 479; People v. Lynes, 49 N.Y.2d 286, 294-295). The court properly held admissible statements defendant made to fellow inmates in the Jefferson County Jail, overheard by Deputy Cote, because conversations inadvertently overheard by third parties are admissible (see, People v. Harris, 57 N.Y.2d 335, cert denied 460 U.S. 1047; cf., People v. Moss, 179 A.D.2d 271, 274, lv dismissed 80 N.Y.2d 932).
By entering a plea of guilty, defendant waived his right to challenge on appeal the racial composition of the prospective jury pool (see, People v. Green, 75 N.Y.2d 902, cert denied 498 U.S. 860). In light of the reversal herein, it is unnecessary to reach the remaining issues raised by defendant.