Opinion
D-16091/08.
Decided September 19, 2008.
Michael A. Cardozo, Corporation Counsel (Vanessa M. Facio-Lince of counsel), New York City, Presentment Agency. Frank M. Galchus, Bayside, Law Guardian, Appearances of Counsel.
By petition filed pursuant to Family Court Act § 310.1 on June 25, 2008 respondent is alleged to have committed acts which, were she an adult, would constitute the crimes of Robbery in the Second Degree, Grand Larceny in the Fourth Degree, Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree.
Claiming that the Presentment Agency intends to offer a statement she alleges was involuntarily made or obtained in violation of Family Court Act § 305.2 by law enforcement personnel, respondent has moved for an order suppressing the introduction of her statement at the prospective fact-finding hearing.
Upon a motion to suppress an out-of-court statement as involuntarily made ( see, Fam. Ct. Act § 344.2 [2]; Criminal Procedure Law § 60.45), or as obtained in violation of Family Court Act § 305.2, the Presentment Agency bears the burden of proving beyond a reasonable doubt that the statement was voluntarily made and lawfully obtained ( People v. Rosa, 65 NY2d 380, 386; People v. Witherspoon, 66 NY2d 973, 974; People v. Brunson, 226 AD2d 1093, app. dismissed 88 NY2d 981; People v. Comfort , 6 AD3d 871, 872).
A
In order to determine whether respondent's statement was lawfully obtained, a hearing was conducted before this Court on September 15, 2008. New York City Police Jennifer Brown was the sole witness at the hearing.
According to Officer Brown, she was on routine patrol in Queens County on April 30, 2008. At approximately 3:30 P.M. that day Officer Brown and her partner, Police Officer Johnson, were situated in "the vicinity of 165-01 Jamaica Avenue" when a person who identified herself as Jennifer R., "came up to us and said she was robbed by four girls." The officers then proceeded to investigate the robbery complaint made by Ms. R. which led to the arrest of three individuals, later identified as "Melissa V., Nickisha B. and Monique G." After Officer Brown and her partner took the three females into custody they "called the supervisor to the scene to verify the arrest" and a patrol supervisor, Sergeant Breonis, responded to the radio call. According to Officer Brown, after Sergeant Breonis arrived at the arrest location "he said that they were under arrest and [that] they had to go back to the station house." At that point, Sergeant Breonis and another officer transported respondent and the two other arrested individuals to the 103rd Precinct while Officer Brown and her partner drove to the 103rd Precinct in a separate police vehicle.
Officer Brown testified that after the officers and the three arrested females arrived at the precinct, "[t]hey were placed under arrest and brought them back to the juvenile room." According to Officer Brown, the three juveniles remained handcuffed and they were placed on a bench inside of the juvenile room where they were kept under observation by herself and Officer Johnson. Officer Brown then proceeded to complete paperwork relating to the arrests and at some point in the process the respondent "made a statement." Officer Brown testified that the respondent stated that "she knew where the phone was . . . on another individual girl that wasn't apprehended at the scene." According to Officer Brown, she, Officer Johnson and the three juveniles were the only people inside of the juvenile room after their initial arrival at the precinct and Officer Brown stated that none of the three suspects were advised of their Miranda rights at any time because, as she explained, "we didn't see a reason to, we were not asking any questions." Officer Brown recalled that after approximately ten minutes, Sergeant Breonis entered the juvenile room and he stood about ten to twelve feet away from the three handcuffed suspects who were still seated on the bench. Breonis then stated to the three suspects that "Jennifer R. said that you knew where the phone was." According to Brown, after Sergeant Breonis made the statement, "[h]e stood there and just looked at them . . . for about a minute" and then the respondent stated that she knew where the cell phone was. In response to subsequent questioning, Brown explained that Sergeant Breonis stated in the presence of all three suspects that "Jennifer R. said that you girls took the phone and you know where it is'", and that respondent spoke "within a minute" of the Sergeant's accusation, stating "I know where the phone is, and she said the girl, Tucker . . . it's on Tucker." Sergeant Breonis left the juvenile room after respondent made the statement and Brown proceeded to complete her arrest paperwork and a report concerning the incident and the arrests. These documents, which included the statement that "Makeda B." has the cell phone, were later provided to the Detectives who would be investigating the incident.
II
The evidence in the record establishes that respondent was arrested by Officer Brown and her partner for committing a robbery and associated crimes in the vicinity of 165-01 Jamaica Avenue in Queens County on April 30, 2008. After their arrests, respondent and the two other juveniles were handcuffed and transported to the 103rd Precinct by Sergeant Breonis and another officer. Upon their arrival at the precinct, the respondent and others remained handcuffed and they were placed on a bench inside of the juvenile room where they remained with Brown and Officer Johnson. This evidence conclusively establishes that respondent was in police custody at the time she implicated herself by responding to the statement made by Sergeant Breonis, since a reasonable person of a similar age in respondent's position, innocent of any wrongdoing, would have concluded that she was a suspect in a criminal investigation and was not free to leave the precinct ( People v. Yukl, 25 NY2d 585, 589, cert. denied 400 US 851; Matter of Kwok T., 43 NY2d 213, 219-220; People v. Centano, 76 NY2d 837, 838; Matter of Chad L., 131 AD2d 760, 761; Matter of Valerie J., 147 AD2d 699, 700; Matter of Robert H., 194 AD2d 790, 791, lv. denied 82 NY2d 658; Matter of Renette B., 281 AD2d 78, 85, lv. denied 1 NY3d 507; Matter of Ricardo S., 297 AD2d 255, 256; People v. Soroka , 28 AD3d 1219, 1220, lv. denied 7 NY3d 818; People v. Payne , 41 AD3d 512, 513, lv. denied 10 NY3d 814).
The weight to be given to the age of the suspect in determining the issue of custody is not definitively settled ( see, Yarborough v. Alvarado, 541 US 652, 666-667 [2004]; In re Tyler F., 276 Neb. 527, ___ NW2d ___ [Sup. Ct. 2008]; People v. Lopez, 229 Ill.2d 322, ___ Ill.Dec. ___, ___ NE2d ___ [Sup. Ct. 2008], although it should be noted that in New York, a child as young as seven may be arrested and charged with juvenile delinquency (Fam.Ct. Act § 301.2 [1]), a fact which has been noted by the Court of Appeals in the context of a right to counsel case involving a young suspect ( People v. Mitchell, 2 NY3d 272, 275 [2004]).
With few exceptions, none of which appear to be relevant here ( e.g., New York v. Quarles, 467 US 649 [public safety exception]; People v. Rodney, 85 NY2d 289, 292-293 [questioning to obtain pedigree information]), it is firmly established that police officers are required to provide pre-interrogation Miranda warnings to a person who has been arrested or significantly deprived of his or her liberty ( Miranda v. Arizona, 384 US 436, 444; Oregon v. Mathiason, 429 US 492, 494; Thompson v. Keohane, 516 US 99, 102; People v. Morales, 65 NY2d 997, 998; People v. Bennett, 70 NY2d 891, 893-894; People v. Paulman, 5 NY3d 122, 129; People v. White , 10 NY3d 286, 290-291; People v. Allen, 42 AD3d 331, 332, aff'd 9 NY3d 1013).
In this State the protection of the rights of juveniles who have been arrested for criminal conduct is afforded a high priority ( People v. Salaam, 83 NY2d 51, 55-57; People v. Mitchell, 2 NY3d 272, 275; People v. Gotte, 150 AD2d 488, lv. denied 74 NY2d 896; Matter of Robert P., 177 AD2d 857, 858; People v. Smith, 217 AD2d 221, 232, lv. denied 87 NY2d 977; People v. Morales, 228 AD2d 525, lv. denied 88 NY2d 1070). To that end, the Legislature has incorporated the requirement that Miranda warnings be provided to an arrested juvenile into the Family Court Act (Fam.Ct. Act § 305.2 [7]; see, Matter of Dominique R. , 29 AD3d 702, 703; Matter of Marcus C., 46 AD3d 816, 817).
Family Court Act § 305.2 (7) provides that "[a] child shall not be questioned . . . unless [s]he and a person required to be notified . . . have been advised: (a) of the child's right to remain silent; (b) that the statements made by the child may be used in a court of law; (c) of the child's right to have an attorney present at such questioning; and (d) of the child's right to have an attorney provided for him [her] without charge if indigent." While section 344.2 provides for the suppression of statements obtained in violation of a juvenile's constitutional rights or the rights set forth in section 305.2 (Fam.Ct. Act § 344.2 [2] [a], [b]), this is merely a codification of the case law requiring the suppression of unlawfully obtained evidence.
In this case, no Miranda warnings were administered to the respondent or the two other arrested juveniles after they were taken into custody because, as Officer Brown explained, there was no intention on her part to question them concerning the incident. Likewise, there was no administration of the warnings after Sergeant Breonis entered the juvenile room approximately ten minutes later. At that point, the uncontradicted testimony establishes that Breonis stood about ten to twelve feet away from the handcuffed juveniles who were seated together on a bench and he stated "Jennifer R. said that you girls took the phone and you know where it is'". Accord-ing to Officer Brown, Sergeant Breonis then stood in place and he "just looked at them . . . for about a minute" and then the respondent incriminated herself by stating that she knew where the cell phone was.
While Sergeant Breonis appears not to have directed his statement at any of the three juveniles in particular, he was not called as a witness by the Presentment Agency so the record contains no direct evidence as to what motivated his actions. In any event, the testimony of Sergeant Breonis would not be determinative. In Rhode Island v. Innis ( 446 US 291), the Supreme Court held that interrogation includes words or actions on the part of law enforcement officers which the officer should have known were likely to elicit an incriminating response from a suspect ( id. at 302; see, Matter of Ronald C., 107 AD2d 1053, 1054; People v. Velazquez, 33 AD3d 352, 353, lv. denied 7 NY3d 929; People v. Van Patten, 48 AD3d 30, 34, lv. denied 10 NY3d 845; People v. Brown , 52 AD3d 1175, 1176; In the Matter of G.S.P., 610 N.W.2d 651, 658 [Minn.App. 2000]; see also, People v. Alls, 83 NY2d 94, 118 [Simons, J. dissenting] [interrogation occurs whenever words and actions of police are likely to elicit an incriminating response], cert. denied 511 US 1090).
Based upon the record of the hearing, the Court finds that the Presentment Agency has failed to meet its initial burden of demonstrating the legality of the conduct of the police officers involved in this case, especially the unexplained conduct of Sergeant Breonis ( see, People v. Drumm, 15 AD3d 910, lv. denied 4 NY3d 853; People v. Giles , 20 AD3d 863, 864, lv. denied 5 NY3d 806; People v. Caballero , 23 AD3d 1031, 1032, lv. denied 6 NY3d 846; People v. Brown , 46 AD3d 1128, 1129). There record conclusively establishes that none of the police officers involved in respondent's arrest administered Miranda warnings to her at any time prior to her making the statement, and the only reasonable conclusion supported by this record is that Sergeant Breonis intended to elicit an incriminating statement from one or more of the suspects when he entered the juvenile room and that his actions were likely to elicit such a statement. The violation of the respondent's right against self-incrimination occasioned by the actions of the police officers in this case cannot be countenanced and her statement is therefore not admissible at the fact-finding hearing ( Matter of Ronald C., at 1054).
The record does not indicate whether either Officer Brown or Officer Johnson attempted to alert Sergeant Breonis that Miranda warnings had not been administered to the juveniles when the Sergeant entered the juvenile room.
To the extent that the Law Guardian moved in the alternative for preclusion of respond-ent's statement on the ground that the notice served by the Presentment Agency did not comply with the requirements of Family Court Act § 330.2 (2) ( see, Criminal Procedure Law § 710.30; People v. Lopez, 84 NY2d 425, 428 [1994]), "counsel was faced with a difficult choice" ( People v. Borthwick, 51 AD3d 1211, 1216 [2008]), in deciding whether to continue to assert the motion for preclusion rather than participate in the Huntley hearing ( see, Criminal Procedure Law § 710.30 [3]; People v. Bernier, 73 NY2d 1006, 1008 [1988]; People v. Amparo, 73 NY2d 728, 729 [1988]; People v. Lopez at 427). In any event, the preclusion motion has been rendered academic given the outcome of the motion to suppress the statement.
Accordingly, it is hereby
ORDERED, that respondent's motion to suppress the introduction of her out-of-court statement to the police is granted for the reasons stated herein.
This constitutes the decision, opinion and order of the Court.