Opinion
February 10, 1971
Appeal from a judgment of the County Court of Albany County, rendered March 17, 1970, convicting defendant of the crimes of burglary, third degree and grand larceny, third degree. On December 31, 1969 a tavern located in Watervliet, New York, was burglarized and certain articles stolen. At separate trials the defendant and one Caswell, both age 20, were tried and convicted of burglary, third degree and larceny, third degree. On January 2, 1970 they were arrested without a warrant for possession of stolen license plates, a misdemeanor. A police officer obtained a statement from Caswell at about 2:30 A.M. on January 3, 1970. Shortly thereafter he started talking to defendant and, at about 6:00 A.M., obtained a statement from him. Before signing the statement written by the officer, defendant wrote the following at the end of the statement: "I gave this statement so that the crime would be evened out instead of the person whom originally confessed to it would not be solely responsible as he was." The statement admitted the crimes for which defendant was ultimately indicted. He was arraigned on those charges some 20 hours after the original arrest. He seeks a reversal of his conviction on the grounds that the initial arrest was illegal since the crime was not committed in the presence of the arresting officer and there was no warrant; that the court erred in admitting the statement because it was not a voluntary one; and that trial counsel was ineffective and the representation so poor that it amounted to a denial of his constitutional rights. A Huntley hearing was held on March 9, 1970 and the court found the statement was voluntary; that Miranda warnings were given; and that defendant was sufficiently intelligent to understand his rights and waived them. The mere fact that the initial arrest was illegal does not automatically bar the confession. It is a circumstance, however, to be considered in determining its voluntariness. ( People v. Spano, 4 N.Y.2d 256, 260; People v. Clemmons, 32 A.D.2d 936.) The same is true with the delay in arraignment. This is also a relevant factor to be considered in assessing voluntariness. ( People v. Carbonaro, 21 N.Y.2d 271, 277.) The primary issue then is whether the trial court properly determined that the confession was voluntary and, therefore, admissible. There was a sharp conflict in the testimony elicited. The police officer testified that he warned defendant of his rights. This was supported by his testimony that he had a card enumerating the constitutional rights of an accused, including the Miranda warnings; that he read it to the defendant; and also explained the rights thereafter in his own words. The card was received in evidence. Defendant denied that he was properly advised of his rights. The evidence establishes, however, that he was a high school graduate, and that he also had previous involvements with the law. He testified that no force or threats were made; that he was provided with cigarettes and food. Defendant's statement written at the end of the officer's statement and before his signature goes to the weight of the confession rather than to its voluntariness. Questions of fact were presented for the court to determine and we conclude that there is ample evidence to sustain its determination. At the trial the court also properly charged the jury, and it was left to them to determine the voluntariness of the confession. We find no merit in the contention of the defendant that he was not properly represented. (See People v. Tomaselli, 7 N.Y.2d 350.) Judgment affirmed. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.