Opinion
November 16, 1994
Appeal from the Monroe County Court, Maloy, J.
Present — Denman, P.J., Pine, Balio, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of second degree murder and first degree robbery, for which he was sentenced as a juvenile offender to concurrent terms of incarceration of nine years to life and one to three years. Defendant contends that County Court erred in denying his motion to suppress statements he made to police; that the court erroneously failed to instruct the jury, in connection with his "second bite" Miranda claim, concerning the Chapple-Bethea rule of taint-attenuation (see, People v Chapple, 38 N.Y.2d 112; People v. Bethea, 67 N.Y.2d 364); and that the sentence is excessive.
The court properly denied the motion to suppress. There is no merit to the contention that the initial oral statement was obtained in violation of defendant's Miranda rights and tainted the subsequent written statement, which was preceded by Miranda warnings. The record establishes that defendant was not in custody at the time he made his oral statements (see, Miranda v Arizona, 384 U.S. 436, 444; People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851; People v. Rodney P., 21 N.Y.2d 1, 7-9). Moreover, those statements were not the product of "interrogation," i.e., either express questioning or "words or actions on the part of the police * * * that the police should know are reasonably likely to elicit an incriminating response" (Rhode Island v. Innis, 446 U.S. 291, 301; see, People v. Ferro, 63 N.Y.2d 316, 322, cert denied 472 U.S. 1007). "[N]ot every comment made by a police officer in response to an inquiry by the defendant can be said to constitute interrogation, merely because it is followed by an incriminating statement from the defendant" (People v. Rivers, 56 N.Y.2d 476, 479, citing People v. Lynes, 49 N.Y.2d 286, 294-295).
The court did not err in denying defendant's request to instruct the jury on the Chapple-Bethea doctrine (see, People v. Salem, 167 A.D.2d 840, lv denied 77 N.Y.2d 911).
We have considered defendant's challenge to the severity of the sentence and conclude that it is without merit.