| People v Rodriguez |
| 2008 NY Slip Op 07711 [55 AD3d 351] |
| October 9, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Roberto Rodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered February 21,2006, convicting defendant, after a jury trial, of persistent sexual abuse and public lewdness, andsentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimouslyaffirmed.
From the time of his arrest until the completion of his final statement, defendant insisted ondiscussing his case with the police and pressing them for information. Defendant repeatedlyasked what he was being accused of, and the detective answered his question by stating that thevictim was reading a book on the train and that defendant had taken out his erect, naked penisand rubbed it on her arm. We need not determine whether that statement by the detective was thefunctional equivalent of interrogation requiring Miranda warnings (see People vRivers, 56 NY2d 476, 480 [1982]; People v Frost, 16 AD3d 351 [2005], lvdenied 5 NY3d 762 [2005]; compare People v Lanahan, 55 NY2d 711 [1981]). Inany event, any error in admitting the statement defendant thereafter made was harmless, as therewas no reasonable possibility that it affected the verdict (see People v Crimmins, 36NY2d 230, 237 [1975]). Defendant's subsequent pre-Miranda statements in his cell wereentirely spontaneous, and not the result of any police conduct.
Defendant's argument that his later, post-Miranda statements should have beensuppressed as a continuous chain of events, tainted by the initial, improper "interrogation" isunpreserved and we decline to review it in the interest of justice. As an alternative holding, wealso reject it on the merits. Regardless of whether there was any prior interrogation, thepost-Miranda statements were sufficiently attenuated, since there was a pronounced breakbetween the statements in question, and defendant had demonstrated an unqualified desire tospeak to the detective (see People v White, 10 NY3d 286, 291 [2008]; People vPaulman, 5 NY3d 122, 130-131 [2005]).
Defendant's claim that his counsel provided ineffective assistance by failing to argue that[*2]the post-Miranda statements should have beensuppressed as part of a continuing chain of events is not properly before us (see People vLove, 57 NY2d 998 [1982]). Concur—Andrias, J.P., Nardelli, McGuire, Moskowitzand Renwick, JJ.