PEOPLE v. MAYORGA, 64 N.Y.2d 864 (1985)

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. JORGE MAYORGA, Also Known as CARLOS MARTIN, Respondent.

Court of Appeals of the State of New York.Argued February 8, 1985
Decided February 21, 1985

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Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Jan H. Plumadore, J.

Denis Dillon, District Attorney (Denise Parillo an Anthony J. Girese of counsel), for appellant.

Fred M. Schwartz for respondent.

MEMORANDUM.

The appeal should be dismissed.

Our review of the opinion of the Appellate Division reveals that its conclusion, contrary to that of County Court, was that defendant’s last two statements were the result of such “`continuous interrogation’ that the Miranda warnings subsequently administered `were insufficient to protect his rights'” and that there was no such “`definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning'”. (100 A.D.2d, at p 854.)

Whether there has been an attenuating break in an interrogation is, as are most other determinations made in suppression matters which require the drawing of inferences from the facts, a mixed question of law and fact (cf. People v Harrison, 57 N.Y.2d 470, 477-478; People v Karabinas, 63 N.Y.2d 871; People v Albro, 52 N.Y.2d 619, 623). Because the determination of the Appellate Division in this case was not “on the law alone or upon the law

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and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]), this appeal does not lie.

Appeal dismissed in a memorandum.