Opinion
February 25, 1971
Appeal from a judgment of the County Court, Sullivan County, convicting appellant of the crime of arson in the third degree (Penal Law, § 150.05). The major issues raised by the appellant center on the admissibility of a confession allegedly made by the appellant on the evening of January 20, 1969. Earlier on the afternoon of the 20th a suspicious fire had occurred in the basement of a building and based on a report from a witness who had observed a man of appellant's description running from the direction of the fire, the fact that firemen who knew appellant saw him walking away from the direction of the fire as they approached and that appellant was also identified as later being present at the fire, the police at about 10:00 P.M. picked up appellant and another for questioning. Appellant was not formally arrested but was given the Miranda warnings before he was interrogated. Subsequently appellant suggested that he be given a lie detector test after which he made the confession in issue. Appellant relying heavily upon Morales v. New York ( 396 U.S. 102), urges that because the police did not have the requisite probable cause to arrest him, they could not have had sufficient probable cause to interrogate him. Not only does Morales not stand for this principle, the Supreme Court clearly stating "we choose not to grapple with the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest" ( Morales v. New York, supra, pp. 105-106), but the court directly suggested that the issue could be circumvented if the State could show "that there was probable cause for an arrest or that [defendant's] confrontation with the police was voluntarily undertaken by him or that the confessions were not the product of illegal detention" ( Morales v. New York, supra, p. 105). Here the police clearly had valid reasons to question the appellant. Moreover, he was not arrested but merely was requested to answer some questions which he voluntarily agreed to do (see People v. Yukl, 25 N.Y.2d 585, 590). However, even if it were not voluntary, "defendant's temporary detention for questioning represented a reasonable exercise of the police power" ( People v. Morales, 22 N.Y.2d 55, 59). Additionally, appellant urges the trial court's determination that the confession was not inadmissible because his detention by the police was illegal, was erroneous. However, assuming appellant's questioning at the police station constituted custodial interrogation, prior to and several times during the course of the investigation appellant unquestionably received the Miranda warnings and the trial court could properly find that the detention was therefore not illegal. Nor was the length of the detention unreasonable as a matter of law. Rather, the length of his detention was merely "a circumstance to be considered in determining the voluntariness of his confession" ( People v. Clemmons, 32 A.D.2d 936; see, also, People v. Leonti, 18 N.Y.2d 384, cert. den. 389 U.S. 1007; People v. Burns, 27 A.D.2d 861, affd. 20 N.Y.2d 814, cert. den. 391 U.S. 956; United States v. Vita, 294 F.2d 524, 528-534, cert. den. 369 U.S. 823). Finally, on the facts present in this case we do not find the rule of People v. Donovan ( 13 N.Y.2d 148) applicable ( People v. Dougherty, 32 A.D.2d 573, affd. 26 N.Y.2d 658), nor do we find any other alleged errors presented which require a reversal. We cannot agree with the dissenting opinion that the trial court's handling of the People's failure to call policeman Cotter as a witness constituted reversible error requiring a new trial, including a Huntley hearing. We, of course, do not quarrel with the general proposition that "the failure of a party to call a witness under his control * * * may result in an inference that the testimony of such a witness would be unfavorable to such a party" ( People v. Moore, 17 A.D.2d 57, 59, cert. den. 371 U.S. 838; Clow v. New York Cent. R.R. Co., 32 A.D.2d 1008; Laffin v. Ryan, 4 A.D.2d 21). However, we are first unable to find that the trial court "apparently" gave no consideration to this particular issue on the Huntley hearing or that, assuming it considered the issue, it could not reach a factual finding on the instant record in favor of the People. Appellant, at the Huntley hearing, made no request to the court to consider this issue and thus quite naturally the Trial Judge's decision made no mention of it. And it is abundantly clear from the trial court's discussion of this issue with appellant's counsel at the time of the requests to charge that the Trial Court was fully conversant with the rule. We find no more than a question of fact as to the voluntariness of the confession which, on the instant record, the Trial Judge, on the basis of credibility and the other relevant evidence in the record, could properly resolve in favor of the People beyond a reasonable doubt. We cannot agree that any inference possibly raised by the People's failure to call Cotter precluded such a conclusion. Secondly, we cannot find any reversible error in the trial court's handling of appellant's request to charge with respect to the failure to call Cotter. During a lengthy set of requests to charge made by the appellant the following brief colloquy transpired: "MR. OPPENHEIM: I request a charge that for purposes of this trial Investigator Cotter as a member of the New York State Police is under the control of the District Attorney and that the failure of the District Attorney to call him should be taken by the jury to indicate that Mr. Cotter's testimony would not have been favorable to the People. THE COURT: Well, I will say this to the jury, the failure to call any particular witness udner [ sic] the control of some party may be considered. There may be a presumption if that witness was called it might be adverse to that party's interest. However, the jury should consider whether that witness is under the control of anybody or whether it's available to all the parties concerned and they are to make a determination as far as which might justify such a presumption and not to make any such presumption unelss [ sic] they feel from the evidence it is so justified. MR. OPPENHEIM: Except, sir. Request a charge that Investigator Cotter's testimony would not have been repititious [ sic] for the period he was alone with the defendant. THE COURT: I refuse to charge. That's a question of fact for the jury. They have a right to consider the effect of his failure to testify." Appellant then pressed on without further hesitation to an additional series of requests. We cannot find on this state of the record that he "did not so charge" or that his treatment of the request constituted reversible error. And we further note that appellant's attorney, after the Judge responded to his request to charge, merely perfunctorily excepted with no explanation as to what he found incorrect in the Judge's statement and continued to his next request. Accordingly, the judgment of conviction should be affirmed. Judgment affirmed. Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur; Herlihy, P.J., dissents, and votes to reverse and order a new trial, in the following memorandum: The judgment of conviction should be reversed and the matter remitted to the trial court for a new trial, including a Huntley hearing. The defendant was originally indicted for arson in the second degree but the jury convicted for the lesser crime of arson, third degree. I agree with the majority that a suspect may be questioned without the detention, for such purpose, necessarily being an arrest and upon the present record it does not appear that the case of Morales v. New York ( 396 U.S. 102) required that the confession be suppressed. Although upon the present record the defendant's assertions at the Huntley hearing that he was immediately placed under arrest do not appear improbable, the question of whether or not there was in fact an arrest was a factual issue for the trial court. The record discloses that at the Huntley hearing the defendant testified that for about four hours he was in the custody of a policeman named Cotter who was administering a polygraph test to him. The period of time in question was from about midnight to 4:45 A.M. on January 21, 1969. When questioned about what occurred during the test, he testified: "I started getting very sleepy and doze [ sic] off in the chair and he (Cotter) pushed my head back and smacked my head on back of the chair * * * I started to doze off again. He held my head up by the forelock on my hair". Then Valerius testified: "I was going to admit to it * * * so I could get some sleep." Defendant also testified that he later told Officer Fuente "I signed it so I could get some sleep". This testimony tends to indicate that the confession was not voluntary because defendant was physically abused and/or was so exhausted that he confessed so that he could get some sleep. These statements by the defendant remain in the record uncontradicted and uncontroverted because of the failure of the People to call the witness Cotter, who was present, to testify as to the truth or falsity of the statements and, accordingly, the inference of nonvoluntariness raised by the defendant was not factually disputed. Under such circumstances, where the People had control of the witness and his availability was not questioned, the trial court should have assumed that Cotter's testimony would be unfavorable to the People and thus corroborative of the defendant's claim of abuse. In People v. Moore ( 17 A.D.2d 57, 59) the court said: "The failure of a party to call a witness under his control who is shown to be in a position to give material evidence may result in an infererence that the testimony of such a witness would be unfavorable to such a party. The rule was carefully examined in this court by Halpern, J., in Laffin v. Ryan ( 4 A.D.2d 21)." (See, also, Noce v. Kaufman ( 2 N.Y.2d 347, 353). The respondent's contention that Cotter's testimony would be cumulative is far from being supported in the record. People v. Huntley ( 15 N.Y.2d 72), in establishing a new procedure with reference to alleged confessions by defendants, stated that the burden of proof as to voluntariness is on the People and that the Judge must find voluntariness beyond a reasonable doubt before the confession can be submitted to the trial jury. In the present case the People failed to call a vital and key witness as to the voluntariness of the confession. The court was obligated to make its decision upon the testimony presented and on this record it is abundantly clear that the court, considering Valerius' testimony, could not make a finding of voluntariness nor could it have decided the issue on the basis of credibility. The findings of fact and conclusions of law are directed solely to the issue of custodial interrogation and the right to counsel but, in any event, there is no finding of voluntariness beyond a reasonable doubt. Assuming arguendo that the trial court properly determined the question of voluntariness at the Huntley hearing, the judgment would nevertheless have to be reversed and a new trial granted. The defendant requested the court to charge the jury that the failure of the prosecution to call Cotter as a witness supported an inference that Cotter's testimony would be adverse to the prosecution and the court did not so charge. The failure of the court to properly charge in regard to Cotter was legal error and was prejudicial to the defendant.