MEMORANDUM.
The order of the Appellate Division should be reversed and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with this memorandum.
Criminal Term erred in holding that a person who is frisked is thereafter in custody as a matter of law for the purpose of administration of Miranda warnings ( Berkemer v McCarty, 468 U.S. ___, 104 S Ct 3138). There is a clear distinction between a stop and frisk inquiry and a forcible seizure which curtails a person's freedom of action to the degree associated with a formal arrest ( see, People v Huffman, 41 N.Y.2d 29). Thus, questioning after a frisk, without more, does not constitute custodial interrogation ( Berkemer v McCarty, supra; see, United States v Bautista, 684 F.2d 1286, 1291-1292, cert denied 459 U.S. 1211; United States v Pratt, 645 F.2d 89, 90-91, cert denied 454 U.S. 881; State v Roadenbaugh, 234 Kan. 474, 673 P.2d 1166, 1169-1172; People v Greer, 110 Cal.App.3d 235, 240, 167 Cal.Rptr. 762, 765). Although the issue of whether a suspect is in custody is generally a question of fact, Criminal Term's determination rests upon an erroneous legal standard, thus presenting a question of law within this court's power of review ( see, People v Palumbo, 49 N.Y.2d 928, 929).
The matter should, therefore, be remitted to Criminal Term so that defendant's motion can be decided in accordance with these principles. The determination should be made on the record of the prior hearing; a new hearing is not required ( People v Quarles, 63 N.Y.2d 923, 925; People v Havelka, 45 N.Y.2d 636, 642-644).
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and TITONE concur; Judge ALEXANDER taking no part.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.