62 A.D.2d 1073 | N.Y. App. Div. | 1978
Appeal from a judgment of the County Court of Tompkins County, rendered July 1, 1977, convicting defendant on his plea of guilty of attempted burglary in the third degree. On October 29, 1976, defendant was indicted and charged with burglary in the third degree and criminal possession of stolen property in the second degree. Upon arraignment on November 23, 1976, he entered a plea of not guilty to both counts. On September 15, 1976, defendant signed a statement indicating that in the month of July, 1976, he and one Eric Gordon entered the downstairs apartment at 414 West Seneca Street, Ithaca, New York, and took some tools which, several days later, they placed in a shed at the residence of Gladys Gagnon. The defendant thereafter moved for an order suppressing from evidence this statement. After a hearing held on January 28, 1977, the motion to suppress was denied. On April 7, 1977, defendant entered a plea of guilty to the reduced charge of attempted burglary in the third degree, and was sentenced on July 1, 1977 to an indeterminate term of imprisonment of not more than three years. Defendant contends that he is illiterate, and at the time he signed the statement he was 17 years of age. On the statement, he indicated he was in the 10th grade. A Binet intelligence test given by a certified school psychologist indicated that he had an IQ of 59. Prior to making the statement, the defendant was twice given the Miranda warning which was read to him at normal speed. At the hearing, defendant testified that he understood that "his rights” had something to do with the law, but did not know what his rights were, and did not realize that the statement he gave could be used against him in a criminal, trial. He also stated that he did not know what the word "advice” meant, and did not know the meaning of the word "waiver”. He also did not realize that he could have a lawyer by his side while he was being interrogated. He also testified that he did not understand the printed warning on the statement which he signed. A certified school psychologist testified that she had administered a Binet intelligence test to the defendant about one month before the hearing, and, in her opinion, he had an IQ of 59. She stated that he had a vocabulary of the approximate level of a 10 year old, and would have difficulty in understanding the entire warning form, unless it were read at a slow pace with emphasis on certain words. In her opinion, defendant could not understand the waiver of rights portion of the statement, or the concept of waiver. The officer who took the statement did not attempt to explain the meaning of the warning to the defendant. The statement was read to defendant before he signed it, because defendant could not read. Defendant contends that the prosecution failed to establish that defendant knowingly and intelligently waived his privilege against self incrimination, and his right to counsel prior to, and at the time of interrogation as required by Miranda v Arizona (384 US 436) and People v Witenski (15 NY2d 392). Considering the entire, record, it is clear that the defendant did not have the mental capability of understanding the warnings read to him without additional explanation and, therefore, did not intelligently waive his right to counsel (People v Drake, 26 AD2d 729; People v Davis, 23
