
    The People of the State of New York, Respondent, v William Waymer, Appellant.
    Argued May 8, 1981;
    decided June 11, 1981
    
      APPEARANCES OF COUNSEL
    
      Henriette D. Hoffman and William E. Hellerstein for appellant.
    
      John J. Santucci, District Attorney (Deborah Carlin Stevens of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that the second confession should have been suppressed as the tainted fruit of the first (see People v Chappie, 38 NY2d 112) must be rejected. Custody is a factual question (see, e.g., People v Albro, 52 NY2d 619). But Criminal Term, in suppressing the first statement, based its decision solely on “the interest [s] of justice”. While it, of course, is possible that the court thereby intended to indicate that it had made a factual finding to that effect, it did not say so. Absent such an express finding, there was no basis for concluding that the Miranda warnings were mandated until the defendant had been placed under arrest and the second interrogation commenced (People v Yukl, 26 NY2d 585), at which time, concededly they were administered.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.  