           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

325
KA 08-00139
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ALTON A. DUNN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (John
J. Ark, J.), rendered November 15, 2007. The judgment convicted
defendant, upon his plea of guilty, of robbery in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of robbery in the second degree (Penal Law § 160.10 [2]
[b]), defendant contends that Supreme Court erred in refusing to
suppress statements that he made while in custody at the police
station, before he was advised of his Miranda warnings. Although
defendant is correct that he had not been Mirandized when two
investigators initially questioned him in an interview room, defendant
did not make any inculpatory statements at that time. In fact, he
consistently denied involvement in the crime. Defendant was left
alone for approximately one hour before one of the two investigators
returned to the interview room, at which time Miranda warnings were
administered and the questioning continued. Defendant made the
incriminating statements at issue during the second interrogation.
Contrary to defendant’s contention, we conclude that there was a
sufficiently “definite, pronounced break in the interrogation” to
dissipate the taint resulting from the initial Miranda violation
(People v Chapple, 38 NY2d 112, 115; see People v Paulman, 5 NY3d 122,
130-131; People v Smith, 275 AD2d 951, lv denied 96 NY2d 739), and
that the court therefore properly refused to suppress the
incriminating statements at issue. We reject defendant’s further
challenge to the severity of the sentence.


Entered:    April 1, 2011                          Patricia L. Morgan
                                                   Clerk of the Court
