98 Misc. 2d 58 | N.Y. Sup. Ct. | 1978
OPINION OF THE COURT
Defendant is charged with arson in connection with a fire that occurred on December 17, 1977 at 2075 Walton Avenue, Bronx, New York. Following are the court’s findings of fact and conclusions of law as determined beyond a reasonable doubt after a Huntley hearing held on June 22 and 23, 1978.
FINDINGS OF FACT
On Saturday, December 17, 1977, shortly after 8:00 p.m., Police Officer Francis Connelly and his partner responded to a fire department radio call reporting a fire at 2075 Walton Avenue. They encountered defendant in the hallway of the building and defendant volunteered the information that he was there checking his wife’s apartment as she was away for
Following defendant’s statement to him, Officer Connelly filled out an arrest report at 10:30 p.m. and brought defendant to Bronx Central Booking,
On the morning of December 18, defendant was taken from the 42nd Precinct where he had been lodged overnight and brought back to Bronx Central Booking at 11:00 a.m., an hour earlier than the other prisoners to be arraigned that day. The arresting officer testified that although the complaint against the defendant had been dictated and put in draft, he had not signed it because the Assistant District Attorney handling the matter had instructed him not to do so without his approval
At the Huntley hearing, defendant testified that he was born in Puerto Rico in 1945 and came to this country five years later. He completed the ninth grade but states he can neither read nor write although he understands English. He has never held a job nor served in the military and lives on public assistance. Defendant has had several previous encounters with the police and has four prior convictions on his record. When he was 15, defendant spent a year in Rockland State Hospital for mental problems although the nature of his then condition was not disclosed, but having observed defendant on the witness stand, however, the court finds him knowledgeable and responsive and sees no evidence of any alleged impairment of either his mental process or ability to understand the English language.
Dr. Joy Roy, a clinical psychologist who examined defendant at the Bronx House of Detention, testified that she administered the Weschler Intelligence Test to him and that she felt his real functioning was most accurately reflected in his performance I. Q. of 73, which represents "borderline” intelligence. During Dr. Roy’s lengthy testimony, she indicated that defendant at least had the "potential” to understand the Miranda warnings given him, although his ability to do so might be impaired by the tensions of the situation in which he found himself. When asked if defendant’s familiarity with the
CONCLUSIONS OF LAW
The initial questions before the court are simple ones: (1) did this defendant have the requisite mental capacity to knowingly, intelligently and voluntarily waive his Miranda rights when he was questioned by Officer Connelly on December 17, 1977; (2) whether this statement to Assistant District Attorney Leviss on December 18, 1977 is inadmissible. The fact that defendant may be of substandard intelligence is not determinative since requisite capacity has been found where a defendant is mentally retarded (People v Blocker, 31 AD2d 885), or has an I. Q. more or less equal to that of this defendant (People v Chaffee, 42 AD2d 172; People v Caruso, 45 AD2d 804; People v Lux, 34 AD2d 662, affd 29 NY2d 848). While it is true that in some of these cases there were some indicia of normal functioning not here present, such as the ability to read and write, or to hold a steady job, the critical factor is that after carefully observing the defendant when he testified at the Huntley hearing, I am convinced beyond a reasonable doubt that this defendant was capable of understanding his Miranda rights and that his waiver of those rights was knowing, intelligent and voluntary as regards his statements to Officer Connelly. This conclusion is buttressed by the fact that defendant was no novice when it came to dealing with the police and that any emotional pressures on defendant arising from his being interrogated by the police were insufficient to render his waiver of his Miranda rights involuntary, unintelligent or unknowing in light of the totality of the evidence adduced. However, with respect to the statement defendant made to Assistant District Attorney Leviss, I am not convinced beyond a reasonable doubt that defendant’s waiver at that time meets the requisite standards. This
Suppression is denied as to the statements made by defendant to Officer Connelly on December 17, 1977. Defendant was properly advised of his Miranda rights on several occasions and, as hereinabove set forth, I am convinced beyond a reasonable doubt that defendant, as testified to by Officer Connelly, showed the capacity to and did in fact voluntarily, knowingly, and intelligently waive those rights before making those statements. Such testimony of Officer Connelly that I have accepted as credible is buttressed by observations of the defendant by me on the hearing.
There is a serious constitutional problem, however, with respect to the statements made by defendant to Assistant District Attorney Leviss inasmuch as it is settled law in New York that once a defendant’s right to counsel attaches, a defendant may not waive that right without his attorney being present (People v Hobson, 39 NY2d 479). In Kirby v Illinois (406 US 682, 688), the Supreme Court held that the Sixth Amendment right to counsel attaches "only at or after the time that adversary judicial proceedings have been initiated”. This was construed by the Court of Appeals in People v Blake (35 NY2d 331, 339-340), in which that court declared that in New York "a criminal action begins with the filing of an 'accusatory instrument’ as defined by statute, which serves as the basis for prompt arraignment * * * [but] [s]ince such a rule offers opportunity for delay between arrest and the filing of an accusatory instrument, an undue delay is prima facie a suspect circumstance suggesting that the delay may have been for the purpose of depriving the accused of counsel”. In the instant case, it is clear that there was a deliberate delay in defendant’s arraignment based on the District Attorney’s desire to take from defendant an additional statement, as evidenced by the fact the Criminal Court complaint had been prepared prior to the time of the interview with Assistant
What the Assistant District Attorney in effect did, with the police collaborating, was to deliberately postpone defendant’s arraignment, thereby delaying his right to obtain counsel in order to get from him a stenographic statement taken by the prosecutor, a lawyer. This is a scheme to deny defendant counsel, even if he voluntarily waived his Miranda rights in his statement to police. This conduct by the prosecutor I hold to be improper.
While it is true that "undue delay” is a relevant but not dispositive factor (People v Carbonaro, 21 NY2d 271), it is manifest that when arraignment is delayed for the sole purpose of permitting the prosecutor to take an additional statement from a defendant in the absence of counsel, such statements are inadmissible (People v Turchiarelli, 26 AD2d 898).
There is no question but that the instant case presents a much closer question than Turchiarelli (supra) or other precedents arguably on point such as People v Richardson (25 AD2d 221). In that case, the statements that were suppressed were taken from defendants who had been turned over to the Criminal Court immediately prior to arraignment, the implication being that the accusatory instrument had already been docketed with the court. The same was true in People v Lawrence (29 AD2d 829) and People v Reyes (NYLJ, Nov. 11, 1976, p 11, col 5) where similar statements were ruled inadmissible.
In People v Veitch (26 AD2d 764), however, the defendant had not been processed to the extent that this defendant had, in that Veitch had been arrested and was at police headquarters when, after four hours of interrogation, he made inculpatory statements erroneously received at trial. True, unlike this defendant, Veitch was never advised of his rights, although he did not request counsel, but I think it significant that the Appellate Division noted that since defendant was in custody after arrest and had been "booked” on the police blotter, it was "clear that the alleged crime had passed the investigatory stage and had reached the accusatory level” (p 764). Indeed, there the delay in arraignment was only one and one-half hours to enable the police to type his statement and have it signed.
An almost identical issue to that now before me arose in
Although there are differences between Lockwood and the instant case, e.g., Lockwood’s attempt to contact an attorney after his arrest and the fact that there, unlike here, the prosecutor yanked defendant out of the arraignment process without any indication that defendant was willing to speak to him,
. Although under the "control” of the police department, Bronx Central Booking is located in the Criminal Court Building, in which access to Legal Aid representation is readily available.
. But note that although this defendant allegedly raised no objections to speaking to Assistant District Attorney Levisss, he did not volunteer to do so as was true in People v Camalo (NYLJ, March 7, 1977, p 11, col 2) where suppression was denied on that basis under virtually identical circumstances to those here present.