| Matter of Daniel H. |
| 2009 NY Slip Op 08467 [67 AD3d 527] |
| November 17, 2009 |
| Appellate Division, First Department |
| In the Matter of Daniel H., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1]
Order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or aboutJanuary 18, 2008, which adjudicated appellant a juvenile delinquent upon a fact-findingdetermination that he committed acts, which, if committed by an adult, would constitute thecrimes of burglary in the third degree, grand larceny in the fourth degree (two counts) andidentity theft in the third degree, and placed him with the Office of Children and Family Servicesfor a period of 18 months, affirmed, without costs.
The manner in which the 15-year-old appellant was taken into custody and initiallyquestioned does not warrant suppression of the statement he provided after being read hisMiranda rights.
The complainant, a children's librarian at the Hunts Point branch of the New York PublicLibrary, had placed her purse inside her office on a chair and left the office, locking the door.When she returned to her office, the glass window to her office had been shattered and items hadbeen thrown around the room. Credit cards, gift cards worth $80, and approximately $25 in cashwere missing from her purse. That same day, charges of $1,059 were made on her MasterCardand charges of $562 were made on her American Express Card. The purchases had been madeon GameStop.com, and one of the shipping addresses was the apartment where appellant lived.When detectives came to his home, they were informed that he was at school, so they proceededto find him there.
The investigating detective was unfamiliar with, and failed to follow, the special proceduresprovided by law for handling juvenile suspects (see Family Ct Act § 305.2 [4] [b];22 NYCRR 205.20 [c]). However, although the detective did not ask either appellant's mother orhis grandmother to accompany him to the school, the assistant principal remained in the roomduring the interview with appellant. They first asked appellant whether he knew the purpose ofthe visit; he said he did not. When informed that they were police officers, appellant respondedthat he assumed they wanted to ask about an incident at school in which he had apparently stolenanother student's book bag. When further informed that they were there because of "an incidentthat happened on September 21, the burglary" in the public library, appellant made no response,[*2]at which time the investigating detective asked directlywhether he had been involved in the burglary. Appellant then stated that he had thrown a bin ofbooks into the window of an office so that he could enter the office, and then took some creditcards. At this point, appellant was placed under arrest.
The fact that appellant was briefly held in an adult holding cell at theprecinct—without any adult prisoners—and was questioned in a room other than adesignated juvenile interview room, contrary to Family Court regulations regarding the handlingof juveniles in police custody (see Family Ct Act § 305.2 [4] [b]; 22 NYCRR205.20 [c]), does not warrant suppression of the statement he gave at the precinct. Notably, theoffice used for questioning appellant was substantially similar to the juvenile room and did nothave a coercive atmosphere (see Matterof Rafael S., 16 AD3d 246, 247 [2005]), and appellant was permitted to speak privatelywith his mother.
While there is no question that the court correctly suppressed the oral statement appellantmade at his school based upon the failure to give him Miranda warnings, the lawsupports the hearing court's conclusion that the written inculpatory statement appellant gave at apolice station was sufficiently attenuated from the earlier statement (see People v White, 10 NY3d286, 291 [2008], cert denied 555 US —, 129 S Ct 221 [2008]; People v Paulman, 5 NY3d 122,130-131 [2005]).
The extent to which appellant was questioned in the assistant principal's office was minimal;in fact, he was really only asked one direct question as to whether he had been involved in theburglary, and there is no indication that anything further in the nature of interrogation took placeprior to his being brought to the precinct. Not only was the initial exchange between appellantand the detective brief, but there was a change of location and a break of approximately onehour. The detective did not try to "isolat[e] [appellant] from his family or other supportiveadults" (see People v Hall, 125 AD2d 698, 701 [1986]); appellant was able to conferwith his mother at the police station before waiving his Miranda rights and giving astatement in her presence. At the precinct, the detective made no reference to the prior statement,but only to the underlying facts of the crime; there is no indication that appellant gave the writtenstatement on constraint of the prior oral statement (see People v Tanner, 30 NY2d 102,105-106 [1972]; People v Rifkin, 289 AD2d 262, 263 [2001], lv denied 97 NY2d759 [2002]). Significantly, although the detective initially stated in his testimony that heinformed appellant and his mother that he had to give a statement, he thereafter corrected thattestimony, stating that he explained to appellant and his mother that he could make a statement ifhe chose to. Appellant was not handcuffed or restrained while he was questioned in thesergeant's office, and he was free to use the bathroom.
Had appellant been an adult, these combined facts would easily constitute grounds to findthe later statement attenuated from the initial questioning (see e.g. People v Parker, 50 AD3d 1607 [2008], lv denied11 NY3d 792 [2008]; People v Davis, 287 AD2d 376 [2001], lv denied 97 NY2d680 [2001]), and the issue of attenuation is not appreciably different for juveniles than for adults:in either case it is critical that there be a pronounced break in the interrogation (People vChapple, 38 NY2d 112, 115 [1975]). In the cases involving juveniles upon which appellantrelies, there was no break between the pre-Miranda and post-Mirandaquestioning (see e.g. Matter of Robert P., 177 AD2d 857, 859 [1991]; People vGotte, 150 AD2d 488 [1989], lv denied 74 NY2d 896 [1989]), or the juvenile,without informed adult guidance or oversight and without Miranda warnings, wassubjected to extensive custodial interrogation, during which he [*3]made a full confession, after which he was told that he wasrequired to go to the police station and provide a written statement (see People vDeGelleke, 144 AD2d 978, 979-980 [1988], lv denied 73 NY2d 920 [1989]). Weobserve that on the attenuation issue, there is no relevance to the detective's failure to abide byFamily Court regulations regarding the handling of juveniles in police custody.
We therefore conclude that the Family Court properly determined that the statementappellant gave at the precinct was voluntary and untainted by the statement he made at his schoolprior to receiving Miranda warnings, and that the dispositional order adjudicatingappellant a juvenile delinquent and placing him with the Office of Children and Family Servicesfor a period of 18 months must be affirmed. Concur—Saxe, J.P., Catterson and McGuire,JJ.
Moskowitz and Acosta, JJ., dissent in a memorandum by Moskowitz, J., as follows: I wouldremand for a new fact-finding hearing. The court should have suppressed appellant's writtenstatement because the later statement was not attenuated from the initial interrogation. ThereforeI dissent.
Fifteen-year-old Daniel H. allegedly shattered a window of a public library and stole creditcards, gift cards, a small amount of cash and other items from a purse he found on a chair in thelibrary office. He then allegedly made purchases using two of the credit cards. He was chargedwith acts that, if an adult committed them, would constitute, inter alia, burglary in the thirddegree (Penal Law § 140.20), grand larceny in the fourth degree (Penal Law §155.30 [4]) and identity theft in the third degree (Penal Law § 190.78 [1]).
The police interrogated Daniel at school without a parent or guardian at his side. The policedid not administer Miranda warnings before Daniel provided an oral statement to thepolice. The police then handcuffed and transported Daniel to the precinct house, where they gavehim Miranda warnings in the presence of his mother. Daniel then provided a writtenstatement.
After a Huntley hearing (People v Huntley, 15 NY2d 72 [1965]), the courtgranted Daniel's motion to suppress the initial un-Mirandized oral statement, but denied themotion with respect to the later written statement.
Huntley Hearing
Detective Chrisanto Comissiong was the sole witness at the hearing. He testified that on themorning of October 4, 2007, he and his partner went to Daniel's home and told his mother andgrandmother that the police were looking for Daniel. His mother informed the police that Danielwas at his high school. The detective then said that he and his partner would be going to theschool to arrest Daniel, but did not ask the mother or grandmother to accompany them.
Upon arriving at the school at approximately 8:30 a.m., the detectives asked for Daniel tocome to the office of the assistant principal. When Daniel arrived 10 to 15 minutes later,Detective Comissiong and his partner stood with their backs to the office door while Daniel satfacing them. In the presence of the assistant principal and without first administeringMiranda warnings, Detective Comissiong initiated the conversation with Daniel byasking whether he knew why the detective was there. When Daniel indicated that he thought itwas because of an incident involving his taking another student's book bag, DetectiveComissiong asked whether [*4]he remembered an incident in thepublic library on September 21 and whether he was involved in the burglary at that time. At thatpoint, Daniel admitted that he had thrown a box of books through the library window and thentaken the credit cards.
After perhaps 10 minutes in the assistant principal's office, Detective Comissiong placedDaniel in handcuffs and told him he was under arrest. At about 9:30 a.m., the detectives tookDaniel for the 20-to-30-minute ride to the precinct house; en route, Detective Comissiong calledDaniel's mother.
At the precinct, Daniel was allowed to call his mother. The detective removed the handcuffsand put him in a barred holding cell used for adult prisoners; Daniel was the only one in it. Thecell was in an area where several detectives worked. Daniel could see adult suspects beingbrought in and could be seen by everyone in the area.
In his direct testimony, the detective estimated that Daniel remained in the cell for 10 to 15minutes until his mother arrived at the precinct. Under cross examination, the detective wascertain it was 20 minutes. Daniel's mother saw Daniel in the cell and was "very upset" with him.
According to Detective Comissiong's hearing testimony, mother and son were given theopportunity to talk with each other when Daniel was removed from the cell and taken to thesergeant's office approximately five feet away. It is unclear from the record whether Daniel andhis mother spoke to each other while in a separate room or in the sergeant's office, or whether thedetective was with them at the time. The sergeant's office was about five feet by five feet, welllit, with a window and a door and furnished with two chairs, a desk and a computer.
Although Detective Comissiong had been a police officer for 12 years during which he hadconducted "at least one hundred" investigations, and during his succeeding five months as adetective had conducted "about one hundred" interviews of suspects, Daniel was the firstjuvenile he ever interviewed. The detective was aware of the procedure requiring the use of ajuvenile room for these interviews. Despite this awareness and the availability of a juvenile roomat the precinct with space and lighting conditions similar to those in the sergeant's office, thedetective nevertheless used the sergeant's office to question Daniel. The detective concededbeing at fault for not using the juvenile room and that he had not "accidentally" failed to followthe correct procedure.
Because Daniel's mother was so upset with Daniel, the Detective seated himself betweenthem. Detective Comissiong testified that, because he expected Daniel to provide a writtenstatement based on what he had said earlier at school, he told Daniel and his mother that Daniel"had to" make a written statement. Presentment agency counsel immediately took pains to elicitthat Daniel was not coerced into making the statement. The detective then clarified that Daniel"could" make a statement. Because further explanation seemed unnecessary, the detective didnot say that Daniel did not have to make a statement. Shortly thereafter, when the detective readthe Miranda right to remain silent, he similarly explained to Daniel that "at any time if hedoesn't want to say anything, he doesn't have to."
For an estimated five minutes, the detective read Daniel and his mother the Mirandawarnings. These he explained in layman's terms and not pursuant to any special training forgiving simplified warnings to juveniles. Daniel initialed each of the warnings on theMiranda sheet that both he and his mother signed, indicating his understanding. Danielthen provided a written statement amounting to a confession of his participation in the incident atthe library. The detective estimated that the questioning and the writing of the statement tookanother five or ten minutes. During the entire period, Daniel was free to use the bathroom, wasprovided with [*5]food and drink, and never indicated that hewanted an attorney, wanted the questioning to stop or wanted to leave.
By order dated November 16, 2007, Family Court found the detective's testimony credible,but suppressed the oral statement Daniel gave at the school because Daniel was in custody at thetime and had not received Miranda warnings.
The court denied suppression of the written statement Daniel gave at the precinct. The courtfound that Daniel was no longer under the influence of the illegal questioning because there hadbeen a "pronounced break" between the initial oral statement and the later Mirandized writtenstatement. Citing People v Paulman(5 NY3d 122 [2005]), the court referred to the change in location, the fresh administrationof Miranda warnings, the offer of food and restroom breaks, contact with the mother andgrandmother, the hour time lag and that the detective did not refer to or leverage the initialillegally-obtained statement.
Fact-Finding
At the fact-finding hearing, Daniel's written statement was admitted into evidence and wasthe only evidence connecting him to the allegations in the petition. The detective's testimonymirrored his testimony at the Huntley hearing, save for details involving the time it tookfor the ride from the school to the precinct (about another 10 or 15 minutes), the dimensions ofthe sergeant's office (about a foot wider), where the mother spoke to Daniel before thequestioning at the precinct (through the holding cell bars and not in a separate room), and whenDaniel was given food and drink (after he gave the written statement, rather than before). Inaddition, although Detective Comissiong had specifically denied it at the Huntleyhearing, this time he testified that Daniel had also given an oral statement at theprecinct.[FN*]The complainant's testimony echoed her deposition in support of the presentment agency'spetition. Daniel did not present any evidence.
By a January 8, 2008 oral decision, Family Court found that Daniel had committed acts that,if an adult had committed them, would constitute the crimes of burglary in the third degree,grand larceny in the fourth degree and identity theft in the third degree. The January 18, 2008final order of disposition adjudicated Daniel a juvenile delinquent and placed him in the custodyof the Office of Family and Child Services for 18 months, less the period spent in detentionpending the disposition.
Discussion
It is, of course, the presentment agency's burden to establish, beyond a reasonable doubt,that Daniel made his written statement voluntarily (People v Witherspoon, 66 NY2d 973,974 [1985]).
To be effective, Miranda warnings must precede the questioning of a defendant, or,as in this case, a juvenile respondent. Where there is an initial Miranda violation and asubsequent post-Miranda statement, "[l]ater is too late, unless there is such a definite,pronounced break in the interrogation that the defendant [or respondent] may be said to havereturned, in effect, to the status of one who is not under the influence of questioning" (Peoplev Chapple, 38 NY2d 112, 115 [1975]). This determination does not require examination ofan accused's state of mind and, [*6]thus, an assessment of his orher credibility, but may rely on an assessment of external events to ascertain whether he or shewas subject to such a continuous interrogation that the Miranda warnings eventuallyadministered were insufficient to protect the accused's rights (id.). Subsequently, theCourt of Appeals adhered to the rule Chapple articulated as a matter of stateconstitutional law in People v Bethea (67 NY2d 364 [1986]).
People v Paulman (5 NY3d122 [2005]) summarized the factors to consider in determining whether there is a "singlecontinuous chain of events" under Chapple. This includes "the time differential betweenthe Miranda violation and the subsequent admission; whether the same police personnelwere present and involved in eliciting each statement; whether there was a change in the locationor nature of the interrogation; the circumstances surrounding the Miranda violation, suchas the extent of the improper questioning; and whether, prior to the Miranda violation,defendant had indicated a willingness to speak to police" (id. at 130-131). The Court ofAppeals went on to note that "[n]o one factor is determinative and each case must be viewed onits unique facts" (id. at 131; seealso People v White, 10 NY3d 286, 291 [2008], cert denied 555 US —,129 S Ct 221 [2008]).
In applying the various Paulman factors and examining the circumstancessurrounding the Miranda violations in this case, I cannot overlook that, unlikeChapple, Paulman and their progeny, this case involves a juvenile rather than anadult defendant.Thus, while Chapple stated that the court need not examine the accused's state of mind indetermining whether the initial Miranda violation and the subsequent interrogationconstitute a continuous chain of events, I do not understand this to preclude consideration of theaccused's youth as a factor.
Here, there was a change in location between the initial Miranda violation and thesubsequent written statement, and the police never attempted to leverage the earlier statement bymentioning it during the subsequent questioning. However, Daniel never indicated a willingnessto speak to the police; the same detectives were present and elicited both the illegal and theMirandized statement and there was no change in the type or nature of the questioning.
Although the detective testified at the suppression hearing that he was with Daniel for about10 minutes in the assistant principal's office, and one must accord much weight to the hearingcourt's credibility determination (see People v Prochilo, 41 NY2d 759, 761 [1977]; Matter of Cy R., 43 AD3d 267,268 [2007], lv denied 9 NY3d 814 [2007], cert denied 552 US —, 128 SCt 1891 [2008]), this time estimate of 10 minutes, standing alone, does not support theconclusion that the improper questioning was insignificant. Under stress, 10 minutes can be along time.
Further, while it appears that the duration of events from the start of the questioning at thehigh school to the interrogation at the precinct took slightly more than an hour, the detective'sestimates leave a gap of more than half an hour within that brief time frame. DetectiveComissiong testified that he arrived at the assistant principal's office at approximately 8:30 a.m.,Daniel was brought in 10 to 15 minutes later, and they were together in the office for perhaps 10minutes when the detective handcuffed Daniel and arrested him. This would make the arrest atapproximately 8:50 or 8:55 a.m. However, the detective also testified that they left the schoolheaded for the precinct at about 9:30 a.m. This fails to account for the period between 8:55 and9:30 that morning.
Thus, it may well be that even less than an hour separated the interrogations, and during thatentire period there was no interval when Daniel was not in the presence of the same police [*7]officers (see People v Jordan, 190 AD2d 990 [1993],affd on other grounds 83 NY2d 785 [1994]). Of course, one hour or even less, incombination with other factors, may constitute a pronounced break in the case of an adultaccused (see People v Neal, 60AD3d 1158 [2009], lv denied 12 NY3d 857 [2009]; People v Parker, 50 AD3d 1607[2008], lv denied 11 NY3d 792 [2008]; People v Samuels, 11 AD3d 372 [2004], lv denied 4 NY3d802 [2005]). However, the factors from these cases have different bearing on the determinationwith regard to a juvenile.
I further note that, while Detective Comissiong was a novice at juvenile interviews and maynot have had experience coping with an angry parent, he certainly recognized that Daniel'smother was hardly in a position to provide calm parental guidance.
In view of the foregoing, it is unnecessary to address the impact of the unexplained failure toquestion Daniel in a designated juvenile room, although I note that there is no per se rulemandating suppression of an inculpatory statement for failure to follow the statutory procedure,and no claim here that the sergeant's office was not substantially similar to the designated room(see Matter of Luis N., 112 AD2d 86, 87 [1985]; see also Matter of Rafael S., 16 AD3d 246 [2005]; Matter ofEmilio M., 37 NY2d 173, 177 [1975]).
Footnote *: Of course, in determining thepropriety of the suppression ruling we may not consider evidence later adduced at thefact-finding hearing (see People v Gonzalez, 55 NY2d 720, 721-722 [1981], certdenied 456 US 1010 [1982]).