| Matter of Richard UU. |
| 2008 NY Slip Op 09128 [56 AD3d 973] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Richard UU., a Person Alleged to be a JuvenileDelinquent. Richard Spinney, as Delaware County Attorney, Respondent; Richard UU.,Appellant. |
—[*1] Richard B. Spinney, County Attorney, Delhi (Amy B. Merklen of counsel), forrespondent.
Peters, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredMay 23, 2007, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 3, to adjudicate respondent a juvenile delinquent.
Respondent (born in 1992) has been committed to the care and custody of the DelawareCounty Department of Social Services (hereinafter DSS) since August 2003. In January 2006,respondent's foster mother allegedly observed him engaging in certain sexual contact with herfour-year-old daughter. The following day, respondent's DSS caseworker brought respondent toDSS for questioning by the police. After respondent and the caseworker were advised ofrespondent's Miranda rights and agreed to waive those rights, respondent madeincriminating statements.
A juvenile delinquency proceeding was then initiated. Respondent moved to suppress hisstatements on the grounds that he did not make a knowing and intelligent waiver of hisMiranda rights and that the waiver was obtained in violation of his right to counsel.Following a [*2]hearing, Family Court denied the motion. Afact-finding hearing ensued, after which Family Court found respondent to have committed actswhich, if committed by an adult, would constitute the crime of criminal sexual act in the firstdegree. Following a dispositional hearing, respondent was adjudicated a juvenile delinquent. Thisappeal ensued.
We reject respondent's contention that the failure to contact the Law Guardian assigned torepresent him in his permanency proceedings prior to questioning violated his right to counsel. Itis now settled that an individual, "in custody on matters unrelated to the [matter] upon which heor she was assigned counsel in a prior separate proceeding, is competent to waive the right tocounsel in the absence of counsel" (People v Kent, 240 AD2d 772, 773 [1997], lvsdenied 90 NY2d 1012 [1997], 91 NY2d 875 [1997]; see People v Steward, 88 NY2d496, 502 [1996]; People vLawrence, 1 AD3d 625, 626 [2003], lv denied 1 NY3d 630 [2004]; seegenerally People v Bing, 76 NY2d 331 [1990]). As the permanency proceedings for whichrespondent had been assigned a Law Guardian are wholly unrelated to the juvenile delinquencyproceeding at issue here, he could validly waive his right to counsel in this matter outside thepresence of that Law Guardian (see People v Kent, 240 AD2d at 773).
Respondent next contends that his statements must be suppressed because he did not make aknowing and intelligent waiver of his Miranda rights. While a juvenile may effectuate aknowing, intelligent, and voluntary waiver of his Miranda rights (see People vStephen J.B., 23 NY2d 611, 616-617 [1969]), "special care above and beyond ordinaryconstitutional safeguards must be provided to insure that the rights of youthful suspects areadequately protected" (Matter of Robert P., 177 AD2d 857, 858 [1991]; see People vCharles M., 286 AD2d 942, 943 [2001]). The ultimate inquiry is whether the prosecutingentity proved that the statement was voluntary beyond a reasonable doubt through a considerationof the totality of the circumstances (see Matter of Paul QQ., 256 AD2d 751, 751-752[1998]). "Relevant factors to be considered include respondent's age, prior criminal experience,evidence of coercion by the police prior to obtaining the waiver and whether 'the Mirandawarnings were fully, clearly and adequately administered to the youth' " (Matter of PhillipJ., 256 AD2d 654, 656 [1998], quoting People v Boykins, 81 AD2d 922, 923 [1981],lv denied 54 NY2d 761 [1981]; see Fare v Michael C., 442 US 707, 729 [1979]).
We disagree with respondent's contention that DSS was "incapable as a matter of law ofproviding the guidance and support to respondent contemplated by [Family Ct Act § 305.2(3) and (7)]" (Matter of James OO., 234 AD2d 822, 822 [1996], lv denied 89NY2d 812 [1997]), thereby rendering his Miranda waiver involuntary. The applicablestatutory provisions were fully complied with when the DSS caseworker, the person "legallyresponsible for [respondent's] care" (Family Ct Act § 305.2 [3]), was notified and presentfor the administration of respondent's Miranda warnings (see Family Ct Act§ 305.2 [7]). Despite respondent's assertions to the contrary, the fact that the DSScaseworker advised him to speak with the investigator does not, in and of itself, establish that shewas not acting in respondent's best interests (see Matter of Arthur O., 55 AD3d 1019, 1020 [2008]; Matter ofJames OO., 234 AD2d at 822-823). While the parent or legal guardian of a juvenile mayinvoke the right to counsel on the child's behalf (see People v Mitchell, 2 NY3d 272, 276 [2004]), there is nothingthat requires it, and we find no compelling evidence that DSS acted contrary to respondent's[*3]interests in permitting him to speak with the police.[FN*]
Viewing the totality of the circumstances surrounding the Miranda waiver andsubsequent confession, we conclude that Family Court correctly declined to suppressrespondent's statements as involuntary. Respondent was 14 years old at the time of questioningand was not taken the night of the incident and questioned at a late hour, but rather removed fromthe home and interviewed the next day at a reasonable time (compare Matter of RobertP., 177 AD2d at 858-859). Both respondent and the caseworker were advised of respondent'sMiranda rights prior to any questioning (see Family Ct Act § 305.2 [3], [7])and respondent unequivocally indicated that he understood his rights and was willing to speakwith the investigator. Moreover, the record establishes that respondent had prior experience withlaw enforcement and was aware of the significance of his Miranda rights.
Furthermore, upon a review of the videotape of respondent's interview, we find no basis toconclude that respondent's admissions were involuntary. The entire interview was brief induration, lasting approximately 45 minutes (see People v Williamson, 245 AD2d 966,967 [1997], lv denied 91 NY2d 946 [1998]; People v Perry, 77 AD2d 269, 272[1980]), and took place at a reasonable time of the day in a room certified for the questioning ofjuveniles (see Family Ct Act § 305.2 [4] [b]). Additionally, a DSS caseworker waspresent with respondent during the entirety of the interview (see Family Ct Act §305.2 [8]). There is no evidence that respondent was tricked, threatened or coerced intoconfessing, or that the strategies used by the investigator were so fundamentally unfair so as tohave denied respondent due process or "create[d] a substantial risk that [he] might falselyincriminate himself" (Family Ct Act § 344.2 [2] [b] [i]; see Matter of WilinstonBB., 175 AD2d 322, 322 [1991], lv denied 78 NY2d 858 [1991]; People vDonson, 147 AD2d 815, 816 [1989], lv denied 73 NY2d 1014 [1989]; seegenerally People v Tarsia, 50 NY2d 1, 11 [1980]). Considering the totality of thecircumstances surrounding respondent's questioning, we cannot say that his statements wereinvoluntarily made.
Family Court's finding that respondent committed acts which, if committed by an adult,would constitute the crime of criminal sexual act in the first degree is both legally sufficient andin accordance with the weight of the evidence. The presentment agency met its burden ofestablishing that respondent engaged in oral sexual conduct with a child under the age of 11(see Penal Law § 130.50 [3]). In his confession, which was properly considered byFamily Court in rendering its order of fact-finding, respondent admitted to pulling thefour-year-old victim's pants down, putting his finger inside her vagina and, despite initial denials,kissing her vaginal area. Further, in both the foster mother's written statement and her testimonyat the fact-finding hearing, she stated that she observed respondent's head very close to the girl'svaginal area and heard "lip smacking" noises. The foster mother also alleged in her statement thatthe victim, [*4]pointing to her vaginal area, stated that respondenthad "lick[ed]" her. Although there were certain discrepancies between the foster mother's writtenstatement and her testimony at the fact-finding hearing, this raised credibility issues for FamilyCourt to resolve (see Matter of BrittenieK., 50 AD3d 1203, 1205 [2008]). Therefore, inasmuch as the corroborating evidenceneed only provide some proof that the crime occurred (see Matter of Carmelo E., 57NY2d 431, 433 [1982]; Matter of David B., 259 AD2d 986, 986 [1999]; see alsoPeople v Booden, 69 NY2d 185, 187 [1987]), we find sufficient evidence to support FamilyCourt's conclusion that respondent committed the act charged beyond a reasonable doubt.Moreover, giving due deference to Family Court's credibility determinations (see Matter ofZachary A., 307 AD2d 464, 465 [2003]; Matter of Manuel W., 279 AD2d 662, 662[2001]), respondent's adjudication was not against the weight of the evidence.
We also reject respondent's argument that petitioner's office was disqualified fromprosecuting the instant proceeding because it was unable to exercise independent judgmentrequired of it as the sole agency for presentation of juvenile delinquency proceedings, since itconsists of the same attorneys that represent DSS. "A public prosecutor should only be removedupon a showing of 'actual prejudice arising from a demonstrated conflict of interest or asubstantial risk of an abuse of confidence' " (Matter of Nathalia P., 22 AD3d 496, 497 [2005], quotingPeople v English, 88 NY2d 30, 33-34 [1996] [citations omitted]). The appearance ofimpropriety alone is not enough (seeMatter of Stephanie X., 6 AD3d 778, 779-780 [2004]). Here, DSS was not a party tothis juvenile delinquency proceeding and it was a caseworker, rather than a DSS attorney, whowas present when respondent waived his rights and agreed to speak with the investigator. Thus,at the time of questioning, DSS was performing its role as the person legally responsible forrespondent, not acting as respondent's attorney. Moreover, respondent does not allege thatpetitioner used any information obtained to gain an unfair advantage in the prosecution of thejuvenile delinquency petition (see Matter of Matthew FF., 179 AD2d 928, 928-929[1992]).
Respondent's remaining contentions, to the extent not addressed herein, have beenconsidered and found to be unavailing.
Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: This is not a case where theparent or guardian required to be notified and present during Miranda warnings was alsothe "accuser" (see e.g. Matter of James OO., supra; Matter of Candy M.,142 Misc 2d 718 [1989]) or the victim of the crime (see e.g. People v Benedict V., 85AD2d 747 [1981]; Matter of Michelet P., 70 AD2d 68 [1979]). Even in thosecircumstances, such a "dual role" is but one "factor to be considered, along with all of the othercircumstances, in resolving the factual issue of the voluntariness of [the] respondent's statement"(Matter of James OO., 234 AD2d at 823).