OPINION OF THE COURT
Defendant, a 40-year-old registered nurse was charged with the murder of her fiancé, Victor Eckes. Prior to trial she moved to suppress statements made by her to the police and certain physical evidence. The hearing court denied her motion. Thereafter, she pleaded guilty to manslaughter in the first degree. We are of the opinion that the statements made by defendant and the gun, the location of which was indicated in her statement, and which she actively assisted the police in finding, should have been suppressed. Accordingly, we reverse the conviction and remand the case for a new trial.
Hildebrandt immediately called for assistance and, at about 6:00 p.m. he was joined by Detective Serpa and Police Officer Montuori. Serpa questioned four witnesses. From them he received substantially the same information which had been imparted to Hildebrandt. A search of the area disclosed two .38 cartridges, one live and one spent, in the vicinity of the bench upon which the victim had been found.
At about 7:30 p.m. Serpa was notified that a white female appeared at the precinct at about 7:15 and had reported a shooting in Fort Tryon Park. Approximately 20 minutes later Serpa returned to the station house where he met defendant. He began to question her about the murder. Defendant told him that the victim was her fiancé; that she and the deceased were sitting on a park bench when a black man emerged from the bushes carrying a radio in one hand and a gun in the other. According to defendant, the black man, without uttering a word, fired two shots at point-blank range and fled. Defendant, unnerved by the incident, ran home, changed from her nurse’s uniform into street clothes and took her dog out for a walk. Upon again returning to her home she left the dog there and went to the station house to report the shooting.
During the initial interrogation of defendant by Serpa, he dispatched Detective Hildebrandt and Police Office Montuori to defendant’s home to verify that she lived there together with her mother and to check whether the story related by defendant to Serpa coincided with such information as she may have divulged to her mother. This occurred sometime between 8:30 and 9:00 p.m. Despite the apparent absurdity of her story, she was, at this point, no more than
The events leading to the examination of the handbag allegedly used in common by defendant and her mother are described in detail in the opinion of our brother Sandler. Following this “consensual” examination by Police Officer Montuori, Montuori telephoned Serpa and notified him of the finding of a bullet in the purse of the same caliber as that used in the slaying. By this time approximately two and one-half hours had elapsed between initiation of the interrogation of defendant by Serpa, which had continued intermittently during that period, and the receipt of the phone call from Montuori. Serpa conveyed to defendant the information about the finding of a bullet which had been related by Montuori and then left her alone. He returned shortly and continued the conversation. When this conversation had continued for approximately an hour without any appreciable results, Serpa suggested that she call her mother. By this time defendant had become more than a suspect. At about 11:00 p.m. defendant called her mother. When the call was made the finding of the bullet in the purse was confirmed. Shortly thereafter defendant made the statement which was the subject of the motion to suppress. Then and only then was defendant advised of her Miranda rights (Miranda v Arizona, 384 US 436).
After defendant had made her statement Serpa asked defendant what she had done with the gun. She responded that she had dropped it in a waste can, giving him the location of the can. Police were dispatched to pick up the weapon. However, they were unable to find it. At Serpa’s request defendant led the police to the precise waste can in which she had disposed of the gun. There, it was recovered.
Whether or not the interrogation of defendant was custodial when first she related her story to Detective Serpa may be open to dispute. However, after the intermittent interrogation had continued for some two and one-half hours and Serpa had been notified that a bullet had been found in “our” handbag the conclusion is inescapable that, even without the formality of an arrest, defendant was in custody. The fact of custody ought not hinge on such
the judgment of the Supreme Court, New York County (G. Roberts, J., at plea and sentence; McGinley, J., at the suppression hearing) rendered September 11, 1981 should be reversed, on the law and the facts, the motion to suppress the defendant’s statements and gun granted, and the matter remanded for a new trial.