This memorandum is uncorrected and subject to revision before publication in the New York Reports.
The appeal should be dismissed, without costs, on the ground that the two-justice dissent at the Appellate Division was not on a question of law (see CPLR 5601 [a]).
Police arrested appellant Daniel H. at his school for the theft of credit cards after he had made an inculpatory statement without being advised of his Miranda rights. Appellant was transported to a precinct, left alone in an adult holding cell, and was again questioned by the same detectives in a sergeant's office rather than a designated juvenile room. A written inculpatory statement was made by appellant after he and his mother were advised of their Miranda rights.
Following a hearing conducted on October 31, 2007, the Family Court precluded appellant's inculpatory oral statement and denied the suppression of his subsequent, inculpatory written statement. The court determined that the written statement was sufficiently attenuated from the earlier oral statement.*fn1
Appellant was adjudicated a juvenile delinquent for committing acts, which, if committed by an adult, would constitute the crimes of burglary in the third degree, grand larceny in the fourth degree, and identity theft in the third degree.
By a 3-2 decision, the Appellate Division affirmed the Family Court order, finding that the written statement was sufficiently attenuated from the earlier un-Mirandized statement (67 AD3d 527 [1st Dept 2009]). The two-justice dissent sought to remit the action to Family Court for a new fact-finding hearing. Appellant appeals to this Court pursuant to CPLR 5601 (a).
Jurisdiction for an appeal to this Court predicated upon CPLR 5601 (a) requires that, at the Appellate Division, there be a "dissent by at least two justices on a question of law in favor of the party taking appeal." The issue of whether a defendant's inculpatory statement is attenuated from his prior un-Mirandized statement presents a mixed question of law and fact (see People v Paulman, 5 NY3d 122 at 129; People v Ryan, 12 NY3d 28 ; People v Conyers, 68 NY2d 982 ). As the two-justice dissent was not on a question of law, this Court is without jurisdiction to decide the appeal (see CPLR 5601 [a]; Merrill v Albany Med. Center Hosp., 71 NY2d 990 ; Guaspari v Gorsky, 29 NY2d 891 ).
Matter of Daniel H. (Anonymous)
Because I believe that the two justice dissent in the Appellate Division was on a question of law, and therefore CPLR 5601 (a) permits our review as a matter of right, I would reach the question presented on this appeal, conclude that an incorrect legal standard was applied in this juvenile delinquency proceeding, and remit to Family Court for further consideration.
Whether the courts below applied the correct standard in determining that Daniel's statement was attenuated is a legal question firmly within our jurisdiction (see People v Borges, 69 NY2d 1031, 1033  ["While questions of attenuation generally present mixed questions of law and fact, where . . . the lower courts have applied an incorrect legal standard, an issue of law reviewable by this court is presented."] [internal citations omitted]). The Appellate Division dissent below explicitly took issue with the legal standard applied by the majority, not the application of that standard. In affirming Family Court's finding of attenuation, the Appellate Division majority held that "the issue of attenuation is not appreciably different for juveniles than for adults," and proceeded to conduct the attenuation analysis just as it would for an adult defendant (Matter of Daniel H., 67 AD3d 527, 529 ). The dissent disagreed about whether Daniel's age should inform the analysis, noting that although the facts here "may constitute a pronounced break in the case of an adult accused[, they] have different bearing on the determination with regard to a juvenile" (id. at 535 [Moskowitz, J., dissenting] [internal citations omitted]). This is a straightforward disagreement regarding the legal standard -- whether or not attenuation should be assessed differently in cases where the suspect is a juvenile -- and so presents a question of law we can, and should, address.
Turning to the merits, I agree with the dissent below that Daniel's age should be a factor in considering whether his Mirandized statement was sufficiently attenuated from his prior, unwarned statement. Miranda warnings "'must precede the subjection of a [suspect] to questioning . . . unless there is such a definite, pronounced break in the interrogation that the [suspect] may be said to have returned, in effect, to the status of one who is not under the influence of questioning'" (People v White, 10 NY3d 286, 291 , quoting People v Chapple, 38 NY2d 112, 115 ). In other words, we aim to ensure that the two interrogations are not part of a "single continuous chain of events" (Chapple, 38 NY2d at 114).
In People v Paulman (5 NY3d 122 ), we enumerated several considerations for determining whether an involuntary statement tainted ...