Defendant is charged with Murder in the Second Degree in the death of her husband Alexander Klimchuk. She moves to suppress statements made to Police Officer Chris-Andy Gray, Detectives Michael Hopkins and Matthew Collins and Assistant District Attorney Edward Purce. Defendant also moves to void her arrest as violative of her constitutional rights.

A Dunaway, Mapp hearing was held before the court.

On the morning of September 5, 2004, Police Officer Chris-Andy Gray responded to a radio run of a deceased person in apartment 5I at 1560 East 102 Street in Brooklyn. The defendant led the officer and his partner into her apartment where they observed Mr. Klimchuk dead on the floor. Ms. Sedunova told Officer Gray that she found her husband dead on the floor when she got up and last saw him alive at 10:30 the previous night. She also asked the officers to search her husband's pockets for money, which request was refused.When the medical examiner arrived the police discovered that Mr. Klimchuk did not die of natural causes but that he was shot in the stomach and stabbed in the leg. At this point Detective Collins was assigned to investigate the death and Detective Hopkins was asked to assist him.

At about 11:30 that morning, Ms. Sedunova was transported to the 69th Precinct and placed in an interview room. Both detectives testified that she was not a suspect when they started to interview her, and so was not read any Miranda warnings. She was asked what happened and made a 10-15 minute statement implicating herself in her husband's death. After that statement Detective Hopkins read her rights and she then made another oral statement as well as a written statement, at about 2:20 in the afternoon. Two hours later the defendant was again given her Miranda rights by ADA Purce after which she made a videotaped statement.

The defendant's statement to Police Officer Chris-Andy Gray was made before she was in custody, and even before the police suspected foul play. The defendant called the police and it would most certainly be unusual for the responding officers to fail to ask her what happened. The defendant's statements to Officer Gray are therefore admissible.

Once the defendant was removed from her apartment and taken to the police station the lines between custody and freedom and investigation and interrogation become harder to determine. Under Miranda v Arizona, 384 US 436, a person in custody, prior to interrogation, must be advised of her rights. To determine custody, the test is whether a reasonable person would have thought she was in custody under all of the circumstances (People v Palumbo, 49 NY2d 928). Custody involves a significant restriction of the person's freedom.

In this case, by the time the defendant arrived at the precinct the police were investigating a homicide. Although the detectives testified they were willing to give her the "benefit of the doubt" in not considering her the cause of her husband's death, there can be little doubt that she was not free to leave the precinct and was a suspect in her husband's death. Any other conclusion defies reason. After all, Ms. Sedunova was alone in her apartment drinking coffee and making telephone calls while her husband lie on the floor dead from a gunshot and stab wound. Even a person innocent of any crime transported to a police station would, under these circumstances, understand she would not be free to walk away without making a statement to the police (see: People v Yukl, 25 NY2d 585).

Since the defendant was in custody and even in the vaguest sense had to be considered a suspect in the homicide, she was entitled to be told and to understand her rights under Miranda before being questioned by detectives. Since this was not done, her initial oral statement to Detective Hopkins must be suppressed. The subsequent immediate recital of Miranda warnings cannot serve, under the circumstances, to remedy this failure and the subsequent written statement by the defendant must also be suppressed. It is noted that the People are not seeking to introduce a second oral statement to Detective Hopkins since no notice of that statement was [*3]given to defense counsel as required by CPL §710.30 (1)(a).

With respect to defendant's videotaped statement, it is clear that the fact that a suspect has made an unwarned statement does not necessarily render a subsequent warned statement inadmissible. In this case there was a pronounced break in questioning and it is clear from the video that Ms. Sedunova understood her rights as read by Mr. Purce and that she was even eager to talk with him

(People v Chapple, 38 NY2d 112; People v Newsome, 68 AD32d 377). When asked if she understood her rights she replied that she did so "perfectly." The court finds that the recitation of her rights prior to making the video statement sufficiently removed any taint from the prior unwarned statement and that defendant made a rational and intelligent choice to waive her rights and speak with Assistant District Attorney Purce (Oregon v Elstad, 470 US 298; People v Bethea, 67 NY2d 364).

The videotaped statement of the defendant will therefore not be suppressed. In addition, since the defendant was alone in her apartment with her husband's body and since she implicated herself in his death, probable cause existed for her arrest.

This constitutes the Decision and Order of the Court.

____________________________

Matthew J. D'Emic

J.S.C.