
    The People of the State of New York, Respondent, v Donald R. Self, Appellant.
    [624 NYS2d 488]
   —Judgment unanimously reversed on the law, plea vacated, motion to suppress granted in part and matter remitted to Jefferson County Court for further proceedings on the indictment. Memorandum: In light of a concession by the People at the Huntley hearing that defendant was in custody from approximately 5:30 a.m., the outset of his encounter with law enforcement officials, the suppression court erred in holding that defendant was not in custody until 7:30 a.m. Consequently, statements defendant made between 5:30 a.m. and 7:30 a.m. should have been suppressed, as well as statements he made after 7:30 a.m. Because we cannot say with certainty that the erroneous suppression ruling played no part in defendant’s decision to plead guilty, the plea must be vacated (see, People v Coles, 62 NY2d 908, 910; People v Harris, 48 NY2d 208, 215; People v Grant, 45 NY2d 366, 379-380).

The suppression court properly concluded that defendant’s statement to Correction Officer Storey was spontaneous because Storey’s question concerning defendant’s physical condition was not one that would be reasonably contemplated to elicit an incriminating response (see, People v Rivers, 56 NY2d 476, 479; People v Lynes, 49 NY2d 286, 294-295). The court properly held admissible statements defendant made to fellow inmates in the Jefferson County Jail, overheard by Deputy Cote, because conversations inadvertently overheard by third parties are admissible (see, People v Harris, 57 NY2d 335, cert denied 460 US 1047; cf., People v Moss, 179 AD2d 271, 274, lv dismissed 80 NY2d 932).

By entering a plea of guilty, defendant waived his right to challenge on appeal the racial composition of the prospective jury pool (see, People v Green, 75 NY2d 902, cert denied 498 US 860). In light of the reversal herein, it is unnecessary to reach the remaining issues raised by defendant. (Appeal from Judgment of Jefferson County Court, Clary, J.—Murder, 2nd Degree.) Present—Pine, J. P., Lawton, Wesley, Callahan and Doerr, JJ.  