People v. Waymer

53 N.Y.2d 1053 (1981)

The People of the State of New York, Respondent, v. William Waymer, Appellant.

Court of Appeals of the State of New York.

Argued May 8, 1981.

Decided June 11, 1981.

Henriette D. Hoffman and William E. Hellerstein for appellant.

John J. Santucci, District Attorney (Deborah Carlin Stevens of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*1054MEMORANDUM.

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.

Order affirmed in a memorandum.