Opinion
Argued May 8, 1981
Decided June 11, 1981
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, THOMAS S. AGRESTA, J.
Henriette D. Hoffman and William E. Hellerstein for appellant.
John J. Santucci, District Attorney (Deborah Carlin Stevens of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant's contention that the second confession should have been suppressed as the tainted fruit of the first (see People v Chapple, 38 N.Y.2d 112) must be rejected. Custody is a factual question (see, e.g., People v Albro, 52 N.Y.2d 619). But Criminal Term, in suppressing the first statement, based its decision solely on "the interest[s] of justice". While it, of course, is possible that the court thereby intended to indicate that it had made a factual finding to that effect, it did not say so. Absent such an express finding, there was no basis for concluding that the Miranda warnings were mandated until the defendant had been placed under arrest and the second interrogation commenced (People v Yukl, 25 N.Y.2d 585), at which time, concededly they were administered.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.