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People v. Ross

Appellate Division of the Supreme Court of New York, Second Department
Nov 2, 1987
134 A.D.2d 298 (N.Y. App. Div. 1987)

Opinion

November 2, 1987

Appeal from the County Court, Nassau County (Goodman, J.).


Ordered that the judgment is affirmed.

We have reviewed the record of the Huntley hearing and conclude that the defendant's initial statements to law enforcement officials regarding the manner in which the fatal injuries were inflicted upon his wife were not the product of a custodial interrogation. The police were conducting an investigation of a reported suicide and the defendant, an alleged witness who was cooperating fully with the police, did not have his freedom of action abridged in any significant way (see, People v. Rodney P., 21 N.Y.2d 1, 9). That the defendant was advised of his Miranda rights prior to submitting to a polygraph examination, apparently out of an "excess of caution" on the part of the police (People v. Smith, 62 N.Y.2d 306, 312, n 2), does not preclude a finding that a reasonable man in the defendant's position, innocent of any crime, would have thought he was free to leave (see, People v. Yukl, 25 N.Y.2d 585, 589, cert denied 400 U.S. 851; People v. Torres, 97 A.D.2d 802, 804). Rather, the issuance of the warnings negated any possibility that the defendant felt compelled to submit to the polygraph test or speak to the detectives (see, People v. Oates, 104 A.D.2d 907, 911; People v. Tarsia, 67 A.D.2d 210; affd 50 N.Y.2d 1).

It was only when the defendant admitted complicity in his wife's shooting that he was taken into custody. At that juncture, he was again apprised of his Miranda rights, which, the record reveals, he knowingly waived. He thereafter executed a written waiver as part of his signed confession and subsequently gave a videotaped statement to an Assistant District Attorney, in which he not only made another express waiver of his rights after having been fully apprised of them, but also verified his previous ones to the detectives. In sum, the videotaped statement, in conjunction with the testimony elicited at the hearing, demonstrates that the defendant made a knowing and intelligent waiver of his rights (see, People v. Dorsey, 118 A.D.2d 653, lv denied 67 N.Y.2d 1052).

The defendant's claim that his statements were the product of an overborne will (see, People v. Leonard, 59 A.D.2d 1), as evidenced by the psychological pressure and coercive atmosphere to which he was subjected, must similarly be rejected. An examination of the totality of the circumstances surrounding the confession, e.g., "the duration and conditions of detention, the manifest attitude of the police toward the detainee, the existence of threat or inducement, and the age, physical state and mental state of the detainee" (People v. Leonard, supra, at 13), provides ample support for the hearing court's conclusion that the defendant's statement was voluntary. This 37-year-old, college-educated defendant neither complained of fatigue or pain as a result of a recent knee operation nor was he subjected to coercive tactics; he was provided with food, drink and cigarettes upon request and chose to waive his rights after having been advised of them several times. He, in fact, hastened to add to the videotaped conversation the following: "By the way, the camera's on, I signed that [written] statement without any guarantees, promises or anything else from anybody. I signed that statement of my own free will, knowing my rights, knowing or at least I believe, he explained to me, just what is going on". The statements were properly admitted in evidence at trial.

Contrary to the defendant's claim, the trial court properly admitted into evidence the videotaped conversation between himself and the Assistant District Attorney. The Assistant District Attorney's testimony that the videotape fairly and accurately reflected his entire conversation with the defendant provided a sufficient foundation for the admission of the tape into evidence (see, People v. McGee, 49 N.Y.2d 48, 60, cert denied sub nom. Waters v. New York, 446 U.S. 942; People v Barbour, 119 A.D.2d 584, lv denied 67 N.Y.2d 1050).

We have examined the defendant's remaining contentions, including those asserted in his pro se supplemental brief, and find them to be either unpreserved for our review or meritless. Brown, J.P., Rubin, Kooper and Sullivan, JJ., concur.


Summaries of

People v. Ross

Appellate Division of the Supreme Court of New York, Second Department
Nov 2, 1987
134 A.D.2d 298 (N.Y. App. Div. 1987)
Case details for

People v. Ross

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH ALLEN ROSS…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 2, 1987

Citations

134 A.D.2d 298 (N.Y. App. Div. 1987)

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