In re Alvin H. , 452 N.Y.S.2d 254 ( 1982 )

In a juvenile delinquency proceeding pursuant to article 7 of the Family Court Act, petitioner appeals (by permission) from an order of the Family Court, Kings County (Roache, J.), dated August 27,1981, which granted respondent’s motion to suppress certain oral and written statements made by him to law enforcement officers. Order reversed, on the law, without costs or disbursements, and matter remitted to the Family Court, Kings County, for a new suppression hearing in accordance herewith. The Family Court suppressed evidence of an oral inculpatory statement on the ground that it was obtained by law enforcement officers while questioning respondent in a place other than a facility designated by this court as suitable for the questioning of children taken into custody pursuant to section 721 of the Family Court Act (Family Ct Act, § 724, subd [b], par [ii]). The Family Court also suppressed evidence of a written confession as the tainted fruit of respondent’s oral statement (see People v Chappie, 38 NY2d 112). The provisions of section 724 of the Family Court Act mandating the questioning of children in designated facilities, commonly referred to as “juvenile rooms”, are only applicable when a child is in custody and subjected to custodial interrogation (see Matter of Anthony E., 72 AD2d 699). Although the Family Court concluded that respondent’s rights had been violated under section 724, it made no express finding on the factual issue of custody (see People v Albro, 52 NY2d 619), and thus failed to set forth a necessary predicate for its conclusion that section 724 had been violated (cf. People v Waymer, 53 NY2d 1053). Consequently, absent a finding on the threshold issue of custody, it cannot be decided whether the court’s conclusion as to the violation of section 724 was correct. We hesitate to resolve the factual question of custody ourselves, since it may well depend for its resolution on a determination of the credibility of witnesses (see People v Yukl, 25 NY2d 585, 592; People v Newson, 68 AD2d 377,384, 386-387). We would remit this matter for further findings of fact, but we cannot, since the suppression Judge is no longer a Judge of the Family Court. Accordingly, we reverse and remit for a new suppression hearing. Damiani, J. P., Titone, Mangano and Brown, JJ., concur.