Opinion
November 1, 1984
Appeal from the County Court of Montgomery County (White, J.).
During the early morning hours of June 27, 1981, defendant, aged 18, and one Roger Farley, armed with a .22 caliber rifle and a .12 gauge shotgun, attempted to enter a neighbor's house. Defendant fired the shotgun through the door wounding the occupant, Helen Gondarowski. They then fled and gained entrance to a nearby house where Farley killed August Graudon by firing two shots into his head. Defendant shot the wife, Agnes Graudon, in the head causing her death. They stole currency and a 1980 Pontiac automobile which they drove to Virginia with the weapons in the trunk. After a telephone conversation with his father in which defendant conceded that he had shot Gondarowski, he and Farley decided to surrender to the police. At about 6:00 P.M. on June 28, 1981, they entered the Garfield police substation of the Prince William County Police Department in Virginia where defendant advised the desk officer, Bruce Hiltibidal, that he wished to turn himself in for the shooting of a woman in New York.
Both defendant and Farley were separately interviewed by Investigator David Lagerveld and each made oral and written confessions. They were arrested in Virginia and, after waiving extradition, were returned to Montgomery County where a Grand Jury returned two indictments charging each of the crimes first above specified. After the denial of defendant's motion to suppress his oral and written statements to the police in Virginia and the oral statement made to his father, he proceeded to trial. After five days of testimony, a plea of not guilty was withdrawn and defendant pleaded guilty to all 13 counts charged; he received sentences of various terms to run concurrently, the longest being 25 years to life for each of the second degree murder convictions.
On this appeal, defendant first attacks both the timeliness and sufficiency of the Miranda warnings given by the Virginia police. Defendant's timeliness argument is predicated on his testimony that he was not advised of his Miranda rights until after he made the written statement. In contrast, the interrogating officer, Investigator Lagerveld, testified that he informed defendant of his Miranda rights at the commencement of the taped interview, following which defendant prepared the written statement. This conflict in testimony presented a credibility question for resolution by the suppression court ( People v Hartley, 103 A.D.2d 935; People v Gates, 101 A.D.2d 635; People v Hopkins, 86 A.D.2d 937, 938, aff'd. 58 N.Y.2d 1079). We find no reason to disturb the ruling. Defendant executed a written waiver of his Miranda rights at approximately 7:20 P.M. on June 28, 1981, and then signed his own written statement at approximately 7:50 P.M. (see People v Smith, 104 A.D.2d 682). This time interval is fully consistent with Lagerveld's testimony. The record belies defendant's contention that Lagerveld failed to properly clarify defendant's immediate right to an attorney both prior to and during the interrogation ( California v Prysock, 453 U.S. 355, 359-360; People v Gates, supra, pp. 636-637).
We reject defendant's contention that his statements were involuntary. Although defendant suggests he was unable to comprehend his rights because he was too tired and incoherent from lack of sleep and the consumption of drugs and alcohol, the fact remains that he voluntarily turned himself in, affirmatively indicated he understood his rights, stated he had only consumed a minimal amount of alcohol and no drugs for some 20 hours prior to surrendering, and conceded he was neither threatened nor coerced into making any statements. Moreover, while Lagerveld indicated that defendant "seemed tired", the entire interview lasted, at most, 40 minutes (cf. People v Anderson, 42 N.Y.2d 35). Considering the totality of the circumstances, there is ample basis for finding beyond a reasonable doubt that defendant's statements were voluntary (see People v Gates, supra; People v Jones, 85 A.D.2d 50).
Defendant's further contention that his right to counsel had indelibly attached prior to any questioning at the Garfield police substation, because the desk officer "believed" a felony complaint had issued, is similarly unpersuasive. The right to counsel attaches upon the actual filing of an accusatory instrument (see CPL 1.20, subd 17; People v Samuels, 49 N.Y.2d 218, 221), not upon the mistaken belief of a police officer that a criminal proceeding has commenced. Here, defendant concedes the felony complaint against him was filed subsequent to the challenged interrogation. We decline defendant's invitation to extend the Samuels rule to situations based upon an officer's belief. In any event, it is significant that the desk officer did not interrogate defendant. Indeed, the statements proferred to Hiltibidal were clearly voluntary and noncustodial. As to the interrogation, Lagerveld testified that he did not believe an arrest warrant had issued since the teletype message from New York indicated defendant was only wanted for questioning. Consequently, defendant's right to counsel may not be deemed to have attached at this stage (see People v Wilson, 56 N.Y.2d 692, 693-694).
Finally, we find no error in the trial court's refusal to suppress the statements made to defendant's father on the basis of a parent-child privilege. Defendant's father initially expressed no desire to remain silent; nor does the context of their conversation confirm an aura of confidentiality (see Matter of Mark G., 65 A.D.2d 917). Since the statements were merely cumulative of defendant's own confession, any prejudice emanating from their admission must be deemed harmless error.
Judgment affirmed. Mahoney, P.J., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.