53 Misc. 2d 889 | N.Y.C. Fam. Ct. | 1967
An officer of the Eochester Police Bureau filed a petition in Family Court January 20, 1967 by which he alleged that the respondent maliciously broke 53
The first problem is whether the first confession by the respondent on January 2, 1967 was admissible. Section 724 of the Family Court Act provides that if a peace officer takes a juvenile into custody he must immediately notify the child’s parent that the child has been taken into custody. In Matter of Williams (49 Misc 2d 154 [1966]) the Family Court held that the police have an affirmative duty to notify the parent; merely informing the juvenile that he may notify his parent is insufficient., In the present case the respondent was in custody, having been taken to the principal’s office and there questioned under the threefold authority of police, school principal and a teacher. There was no attempt to notify or procure a parent or any other adult who was responsible for the respondent although the mother’s whereabouts were known to the school and the police. Did the violation of the statute preclude the use of the confession? The leading cases involving admissibility of confessions where the defendant was denied counsel of his family are cases in which the defendants were adults (People v. Taylor, 16 N Y 2d 1038 [1965]) and People v. Hocking (15 N Y 2d 973 [1965]). In these two cases the Court of Appeals held the confessions were not inadmissible solely because the defendant’s family was denied access to him. The question was whether the statement was made to the police voluntarily. The refusal to allow defendant to talk with a parent was only one consideration. In the present ease the defendant was a juvenile and protected by statute. As stated in the Williams ease the decision to exercise his right to have a parent present
In addition to the violation of the statute the court considers the first confession violated the requirements of due process guaranteed by the Fourteenth Amendment of the Federal Constitution as set forth in Miranda v. Arizona (384 U. S. 436, 478-479 [1966]) to wit: “ when an individual is taken into custody or otherwise deprived of his freedom by the authorities and is subjected to questioning * * '* He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
Although section 781 of the Family Court Act makes clear that juvenile delinquency proceedings do not have the taint of criminality, nonetheless it appears clear that constitutional safeguards must be vouchsafed a juvenile. (Matter of Williams, supra; Pee v. United States, 274 F. 2d 556.) Indeed, the Court of Appeals, in Matter of Gregory W. (19 N Y 2d 55, 62 [1966]) has recently stated: ‘ ‘ While the Family Court Act specifically states that the proceedings held thereunder are not criminal in nature, the various provisions made for the protection of the rights of children who are charged with juvenile delinquency are indicative of a legislative recognition of the fact that such proceedings, resulting as they do in a loss of personal freedom, are at the very least quasi-criminal in nature. ’ ’
At the January 2, 1967 interrogation Knox was not advised that anything he said might be used against him or that he might have an attorney.
. The question raised is clear: may the police elicit a confession under conditions which are unlawful under section 724 of the Family Court Act and unconstitutional under the Fourteenth Amendment and then secure a confession of the same matter under conditions which do not violate statutes or Constitution, and use it as evidence in trial of the confessor! This case is devoid of any emotion; the respondent was not questioned for hours by relays of police, held in solitary confinement, beaten, starved, threatened or subjected to any of the inhuman treatment one finds in cases like Gallegos v. Colorado (370 U. S. 49) and Haley v. Ohio (332 U. S. 596 [1948]).
The Knox case is analogous to Leyra v. Demo (347 U. S. 556 [1964]) in some respects. In the Leyra case a psychiatrist
In Gallegos v. Colorado (370 U. S. 49) the Supreme Court said in part that there is no guide to the decision in cases such as this, except the totality of circumstances that bear on the factors mentioned — they being the necessity for observance of procedural requirements of due process and the absence of the element of compulsion condemned by the Constitution.
The court, in the present ease, finds that in the mind of a 12-year-old there was no difference between the circumstances and the subject matter of the questions asked at the first confession of January 2, 1967 and the second confession of January 5, 1967. As in the Legra case the relation was so close that the one confession controlled the other. The fact that the police officer read to the boy a list of his rights before his second confession does not suffice.
The United States Supreme Court in Haley v. Ohio (332 U. S. 596, 601) stated:
“We cannot indulge those assumptions ” (that a 15 year old boy would appreciate the advice as to use of confession, the need for counsel, etc.).
“ Moreover, we cannot give any weight to recitals which merely formalize constitutional requirements. Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. They may not become a cloak for inquisitorial practices and make an empty form of the due process of law for which free men fought and died to obtain.”
The use of two distinct interrogations of Knox appears to this court to have been ‘ ‘ a cloak for inquisitional practices and made an empty form of the due process. ’ ’ The court, therefore, grants the motion of respondent’s counsel and excludes both confessions.