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[31 A.D.2d 964 Page 964] Judgments and order reversed, on the law and the facts and in the interests of justice, and new trial ordered. Insofar as
the reversal is on the facts, it is limited to the findings of fact of the trial court which were made on defendant's said
motion, after a post-trial hearing. The findings of fact of the jury are affirmed. We agree with appellant that his interrogation
by the police after he had once invoked his Fifth Amendment privilege and while he was in custody without counsel was improper
(Miranda v. Arizona, 384 U.S. 436, 473-474). We see no distinction of substance in the fact that the prior invocation of the
privilege was made in connection with a request for a statement as to a different crime. The coercive pressures of custodial
interrogation do not cease merely because the subject matter of the interrogation changes (cf. Westover v. United States,
384 U.S. 436; United States v. Slaughter, 366 F. 2d 833, 843). In our opinion, however, a careful reading of Miranda and Westover
indicates that a statement obtained as a result of such improper interrogation may nevertheless be admissible if the prosecution
sustains the heavy burden of demonstrating a knowing and intelligent waiver (Miranda v. Arizona, supra, p. 475). In the instant
case, it was established that appellant had been fully warned of his constitutional rights three times before the interrogation
began. He had been in custody then only about four hours. The record indicates that this period was not spent in isolation
or under continuous questioning (People v. Leonti, 18 N.Y.2d 384, 391, cert. den. 389 U.S. 1007). It also establishes that,
although appellant had invoked his privilege when initially asked about the September 5 robbery, he shortly after that made
an oral inculpatory statement to Officer Raffa about that crime. Before the interrogation began, he was confronted with a
witness who identified him as being in the grocery store at about the time the robbery and felony murder were committed. He
was not a stranger to law enforcement officers, having been convicted of robbery in North Carolina, having served time there
and having escaped from prison (cf. People v. Carbonaro, 21 N.Y.2d 271, 278; People v. Bodie, 16 N.Y.2d 275, 279). He had
one year of college education (cf. Clewis v. Texas, 386 U.S. 707, 710-712; Davis v. North Carolina, 384 U.S. 737, 742-751).
Under all these circumstances, we think it was established that appellant knowingly and intelligently had waived his rights
and that his inculpatory statement was properly received in evidence. We also think, however, that enough was adduced at the
post-trial hearing to warrant a new trial (People v. Leonti, 262 N. Y. 256; People v. Whitmore, 45 Misc. 2d 506, 520; cf.
People v. Burney, 20 A.D.2d 617; State v. Roberts, 47 N. J. 286). Although one seeking to set aside an adjudicatory process
normally has the burden of showing essential unfairness as a demonstrable reality and not as a matter of speculation (Stroble
v. California, 343 U.S. 181, 198), there are situations so laden with the probability of prejudice [31 A.D.2d 964 Page 965]

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