Lead Opinion
Appeals by the defendant from two judgments of the County Court, Suffolk
Ordered that the judgments are affirmed.
At approximately 6:17 a.m. on the morning of September 17, 1988, two police officers responded to a home in Belle Terre, New York, where they discovered the body of Arlene Tankleff, who had been beaten and stabbed to death, and Seymour Tankleff, who had been severely beaten and stabbed, but who was still breathing. Seymour Tankleff was taken to the hospital, where he later died.
At 9:20 a.m., the defendant arrived at police headquarters. At 9:40 a.m., two detectives started to question the defendant. The defendant initially provided an exculpatory version of events of that morning and had, in fact, accused another person of the crimes in question. However, at approximately 11:45 a.m., one of these two detectives, James McCready, devised a stratagem in order to test the defendant’s veracity. This stratagem took advantage of the fact that the defendant’s father Seymour Tankleff had initially survived and had been taken to the hospital.
At 11:45 a.m., Detective McCready staged a telephone call to the hospital and pretended to be party to a nonexistent telephone conversation, during the course of which he said, in a voice loud enough to be overheard, "Yeah, John, yeah. You’re kidding? No kidding, he came out. Okay. Thanks a lot.” McCready then advised the defendant that Seymour Tankleff had come out of a coma and had accused the defendant of being the assailant. McCready testified, "I told him that his father told Detective Pfalzgraf [stationed at the hospital] that he, Marty, was the one who did this to his father; that he beat and stabbed his father”. No Miranda warnings had been given at this point.
The defendant’s first response was to attempt to reconcile his prior exculpatory version with his father’s putative accusation. He said, "If my father said that, that’s because I’m the last person he saw”. The second detective, Norman Rein, then stated, "Marty, maybe your father was conscious when you came in and stabbed him”. At this point, the defendant volunteered to take a lie detector test, but his request was refused. Detective Rein continued the questioning by asking,
On appeal, the defendant’s first argument is that his confession was extracted from him in violation of his privilege against self-incrimination under the Federal and State Constitutions (US Const 5th, 14th Amends; NY Const, art I, §6). Specifically, he argues that the police subjected him to a custodial interrogation in violation of the rule announced in Miranda v Arizona (
A suspect is not entitled to receive a recitation of his Miranda rights unless he is in police custody. In New York, the question whether a suspect is in police custody is to be determined with reference to the question whether an ordinary person, innocent of any crime, would, in the defendant’s position, think that he was free to leave (see, e.g., People v Yukl,
The defendant was clearly not in custody when he arrived at police headquarters at 9:20 a.m. Even assuming that the police suspected the defendant at this point, neither the defendant himself nor a reasonable person, innocent of any crime, would have known of these suspicions. The defendant accused a third party of committing the murders, and he most likely would have believed that his presence at the police station was required, not because he was a suspect, but because he was a crucial witness. That Detective McCready later used a ruse to cause the defendant to believe that there was inculpatory evidence against him (his father’s purported
The defendant also contends that his confession should have been suppressed because it was the product of a police-orchestrated ruse. We agree that the weight of the evidence establishes that it was Detective McCready’s spurious telephone call to the hospital, followed by his deceptive report to the defendant as to the supposed content of the bogus telephone call, which in fact prompted the defendant to confess. However, it is also clear to us that the type of trickery employed by Detective McCready in this case was not likely to provoke an unreliable confession; on the contrary, we find that the factual reliability of the defendant’s confession was, if anything, enhanced by the nature of the particular ploy which was used to elicit it. Needless to say, we give no credence to the defendant’s claim that he confessed because he was "brainwashed”. The stratagem employed by the police in this case was, in short, not so fundamentally unfair as to have deprived the defendant of his due process rights (see, People v Tarsia,
The defendant also argues that there was insufficient evidence to support the jury’s verdict finding him guilty of "depraved mind” murder with respect to the death of his mother Arlene Tankleff, and that this verdict is inconsistent with the one finding him guilty of intentional murder with respect to the death of his father Seymour Tankleff. These related arguments are meritless.
While it is true that a person cannot commit a single homicidal act while entertaining two inconsistent mental states (see, People v Gallagher,
We agree with the defendant to the extent that he argues that the evidence presented by the prosecution is far more consistent with the conclusion that he intended to kill his mother than with the jury’s conclusion that he killed her recklessly. However, we are not free to vacate a conviction based on a finding of recklessness merely because we ourselves consider that a finding of intent would have been more plausible in light of the evidence. The present case is certainly not the first one in which such a circumstance has arisen (see, e.g., People v Applegate,
We have examined the defendant’s remaining contentions and find them to be without merit. Bracken, J. P., Sullivan and Pizzuto, JJ., concur.
Dissenting Opinion
dissents and votes to reverse the judgment, on the law and the facts, to grant that branch of the defendant’s omnibus motion which was to suppress his statements to the police, and to dismiss the indictments, with the following memorandum, with which Eiber, J., concurs. Based upon the totality of the circumstances, and giving particular consideration to the youth of the defendant, I conclude that the defendant was subjected to custodial interrogation without the benefit of the Miranda warnings and, therefore, his confession should be suppressed.
At the time of the murders, the defendant was still a minor and special care should have been taken to ensure that his rights were protected (see, People v Alaire,
Within about 15 minutes of the arrival of the police at his home at about 6:17 a.m. on September 17, 1988, the defendant was separated from his brother-in-law, the only relative present, because the police did not want them to "contaminate each other’s story”. The defendant was told to remain in a police car and was questioned intermittently by various police officers for approximately two hours concerning the discovery of his parents’ bodies. While at the Tankleff house, the police would not permit the defendant to wash blood from his hands or to enter the house to obtain a pair of shoes. At 8:35 a.m., the police took the defendant from his house to police headquarters, and there is no dispute that the police considered him a suspect at that point. At police headquarters, the defendant was placed in a small room, where he was questioned by two detectives without interruption for over two hours. He was subjected to increasingly accusatory questioning, as the detectives inquired as to gaps in his story, such as why there was blood on the light switch in his room, why he did not see his mother the first time he went into her darkened room, and why he did not have more blood on his body. The defendant was asked to demonstrate how he moved his wounded father out of a chair. At one point, the defendant was told that his explanation was "ridiculous”. Detective McCready testified that he was aware that the defendant’s immediate family members were available at the hospital where Mr. Tankleff was being treated and that, before proceeding to police headquarters with the defendant, Mr. TanklefFs attorney had given him a telephone number where he could be reached. Furthermore, it is apparent from the testimony elicited from the defendant’s sister, which the court found credible, that family members were led to believe that the police would bring the defendant to the hospital from his home.
Even assuming, arguendo, that the defendant was not in custody during the initial interrogation at police headquarters, it must be concluded that once Detective McCready
Under these circumstances, the issuance of the Miranda warnings to the defendant shortly after the ruse was insufficient to dissipate the taint of the previous improper police conduct, as the defendant was subjected to continuous custodial questioning (see, e.g., People v Chapple,
A comparison between the facts of this case and the facts in People v Hall (
I am mindful that the findings of the hearing court are accorded great deference on appeal (see, People v Prochilo,
Finally, even if I agreed with my colleagues that the confession should not be suppressed, I would dissent and vote to grant the defendant a new trial based on the court’s error in permitting the prosecutor to comment during summation on the defendant’s failure to call his sister and brother-in-law as witnesses. Generally, once a defendant comes forward with evidence, the prosecution may comment on his failure to call an available witness whose testimony may be material and who is under his control (see, People v Rodriguez,