Opinion
December 30, 1970
Appeal by the People from two orders of the County Court, Westchester County, the first dated September 11, 1970, granting defendant's motion to suppress all admissions and confessions made from December 22, 1965 to January 24, 1966 by defendant to Zvi Almog, Director of the Jewish Community Center of Yonkers, and the second dated October 16, 1970, granting defendant's motion to dismiss the indictment. Order dated September 11, 1970 modified by (1) excepting from the determination therein Almog's conversations with defendant on December 22, 1965 and on the evening of January 24, 1966 and (2) adding a provision thereto that the suppression motion is denied as to said conversations. As so modified said order is affirmed. Order dated October 16, 1970 reversed, motion to dismiss indictment denied and indictment reinstated. This appeal involves the conflagration that occurred on December 20, 1965, at the Jewish Community Center in Yonkers, in which 12 persons perished. Experts testified that arson was indicated. Defendant, who was 16 years old when the fire occurred, was then in the employ of the Community Center. Prior to this employment, which he had obtained through the Youth Corps, he had a history of some mental disturbance. Further, he had been adjudicated a "neglected child" by the Family Court when he was nine years of age. Following the fire, he discussed the tragedy with Dr. Zvi Almog (a doctor of philosophy) who was the Director of the Center. He allegedly told Almog, before December 22, 1965, that he had burned his hand in trying to put out the fire. On December 22 he allegedly told Almog that "every time there is a fire, he [defendant] has been accused of it". Almog reported this conversation to the police. Defendant became a prime suspect in the police investigation as to who had caused the conflagration. He was interrogated by the police on a number of occasions between December 29, 1965 and January 24, 1966. Almog took an active part in the investigation. Defendant allegedly confessed to the police on January 24, 1966 that on December 20, 1965 he had an urge to set a fire. He then allegedly gave the police officers a detailed description of how he had (1) found, in the basement of the Center, a can marked "highly flammable", (2) stacked chairs against an entrance door on the fourth floor, (3) poured the contents of the can over objects in the stairwell leading to the fourth floor and the balcony on the third floor and (4) lit a match after the contents of the can had been disposed of, whereupon a "very big" fire erupted. After defendant had allegedly made this confession to the police, he telephoned Almog to take him home from the police station. Almog came for that purpose. While riding alone with Almog and going home in Almog's automobile, defendant allegedly also made a full confession to Almog of his compulsive incendiarism resulting in this tragedy. On May 27, 1966, defendant was indicted by the Grand Jury of Westchester County, charged with first degree murder of the 12 persons who had died in the fire and also with arson in the first degree. He pleaded not guilty. On October 21, 1966, the County Court held, in connection with a motion which had theretofore been made on behalf of defendant to dismiss the indictment, that (1) the admissions and confession given by him to the police should be suppressed because the Miranda warnings ( Miranda v. Arizona, 384 U.S. 436) had not been given to him, (2) even though Miranda had not been decided when the police interrogated him, nevertheless noncompliance with the Miranda rule applied to cases which had not been tried prior to the Miranda decision and (3) a Huntley hearing should be held to determine whether defendant's admissions and confession to Almog should be suppressed (cf. Miranda v. Arizona, supra; Johnson v. New Jersey, 384 U.S. 719). Pursuant to that decision a Huntley hearing was held between January 10 and January 26, 1967. On March 16, 1967 the County Court determined, inter alia, that the alleged admissions and confession to Almog were voluntarily made, were not coerced psychologically or otherwise and were not tainted by the illegal admissions and confession which defendant had allegedly made to the police. By order dated March 22, 1967, the County Court denied the motion (to dismiss the indictment) and denied suppression of the admissions and confession to Almog. On June 13, 1967 a judgment convicting defendant of murder in the first degree and arson in the first degree was rendered by the County Court after a lengthy jury trial. Defendant repudiated his alleged confession to Almog in that trial. The judgment was affirmed by this court, but the Court of Appeals reversed and ordered a new trial on the grounds that defendant should have been permitted to examine the police tapes of his interrogation and part of the Grand Jury minutes, on the issue as to whether his admissions and confessions to the police, found to be illegal under Miranda standards, were so inextricably related to the admissions and confession made by defendant to Almog as to have tainted the latter admissions and confession — for if the latter were so tainted they should also be suppressed ( People v. Ruppert, 32 A.D.2d 890, revd. 26 N.Y.2d 437). Moreover, the Court of Appeals determined that the reversal of the judgment permitted a further Huntley hearing to be held as to the admissions and confession to Almog and that in the light of the evidence produced at such further Huntley hearing defendant might renew his motion to dismiss the indictment. Pursuant to the Court of Appeals' determination a further Huntley hearing was held between July 27, 1970 and September 3, 1970, at which tapes of defendant's confession to the police and part of the Grand Jury minutes were available to defendant. On September 11, 1970 the County Court rendered its decision and order here under review wherein it directed that "all statements made by defendant to Almog are suppressed." In our opinion, the admission made by defendant to Almog on December 22, 1965 that "every time there is a fire, he has been accused of it" is not related in any way to the police interrogation and should not have been suppressed. Further, it is our opinion that the alleged confession made by defendant to Almog on the evening of January 24, 1966, when Almog came to take him home from the police station, is not inextricably interrelated with his prior confession to the police and should not have been suppressed. Defendant was alone with Almog at the time. He was not in police custody or under police constraint at that time. He had a good relationship with Almog. He was free to go where he wished and there is evidence from which it might reasonably be concluded that, in making this alleged confession to Almog of his alleged compulsion in setting the fire on December 20, 1965, defendant may have been purging his conscience or may have been admitting to a psychotic tendency towards pyromania. The statement to Almog on December 22, 1965, and the confession to Almog on the evening of January 24, 1966, together with the other unsuppressed evidence before the Grand Jury, in our opinion, are sufficient to sustain the indictment. Munder, Acting P.J., Kleinfeld and Benjamin, JJ., concur; Martuscello, J., dissents and votes to hold the appeal in abeyance pending a remand to the court below with a direction that it make its own independent findings as to whether the confession was tainted by the previous admissions to the police. It appears that the County Court erroneously determined that the Court of Appeals had indicated that there should be a finding that the admissions were tainted. Brennan, J., dissents and votes to affirm the orders.