Opinion
June 18, 1991
Appeal from the Supreme Court, Bronx County (William Wallace, III, J.).
Defendant's conviction arises out of his arrest with a codefendant for stealing food stamps from a resident of a Bronx County men's shelter on April 11, 1988.
Defendant's claim that the hearing court erred in denying suppression of a post- Miranda statement made by him, on the ground that the statement was the tainted product of pre- Miranda custodial questioning, is without merit. The record indicates that defendant was not subject to custodial questioning before Miranda warnings were administered. The officer merely advised defendant of the accusation made against him, which does not constitute either formal questioning or its functional equivalent (see, People v Gamble, 129 A.D.2d 470, affd 70 N.Y.2d 885).
Additionally, the post- Miranda statement made by defendant was not in response to any form of questioning, and thus would be admissible even if defendant had not voluntarily waived his rights (see, e.g., People v Gonzales, 75 N.Y.2d 938, cert denied ___ US ___, 111 S Ct 99).
In view of the overwhelming evidence of defendant's guilt, as well as the fact that defense counsel opened the door to cross-examination of defendant regarding his pre-arrest silence by direct questioning and testimony of pre-arrest conversation between defendant and the police, any error in the admission of such testimony is rendered harmless (People v Crimmins, 36 N.Y.2d 230).
Concur — Murphy, P.J., Milonas, Ross and Rubin, JJ.