W., In re

Decision Date30 December 1966
Citation277 N.Y.S.2d 675,224 N.E.2d 102,19 N.Y.2d 55
Parties, 224 N.E.2d 102 In the Matter of Gregory W., Appellant. In the Matter of Gerald S., Appellant.
CourtNew York Court of Appeals Court of Appeals

Leon B. Polsky, New York City, and Charles Schinitsky, Brooklyn, for appellants.

J. Lee Rankin, Corp. Counsel (Stanley Buchsbaum, Norman Redlich and Eric J. Byrne, New York City, of counsel), for respondent.

KEATING, Judge.

In the early morning hours of September 28, 1964, two aged domestics were brutally assaulted in a private dwelling in Brooklyn. Both were the victims of beating, rape and sodomy. One was strangled to death.

Miss Delia Walsh, who survived the ordeal, told the police that she believed her assailant was a Negro, male, in his late teens or perhaps 20 years of age, and with a deep gravel voice. She also told them that it seemed to her, from the force of the blows and the tightness of his grip, that he was very strong. Miss Walsh was not able to see her assailant because her face was thrust into a pillow case. Her impression as to his race was based on the sound of his voice and her impression as to his age was based on the deepness of his voice as well as the physical strength exhibited.

Some two weeks later, at about 5:30 in the evening, Gregory W., then 12 years of age, was taken into custody. From 5:30 to about 6:30 he was questioned about a crime unrelated to the crime in question by a Detective Sullivan.

Following this questioning, the respondent was interrogated by two different detectives who were assigned to the investigation of this assault and murder.

Detective Flynn, one of the two detectives engaged in this interrogation, testified that his questioning of Gregory commenced somewhere around 8:00 P.M. He first questioned him about incidents unrelated to the crime in question and not until approximately 10:30 or 11:00 P.M. did he get around to questioning Gregory about the assault and murder. During this period Gregory told the detectives a series of incredible stories. Following each narrative, Detective Flynn would tell the respondent: 'That's not the story I want you to tell me.' Gregory would reply: 'Well give me a hint. What story do you want me to tell you?' Whereupon Flynn would answer: 'You know the story I want you to tell me.'

Sometime between midnight and 1:00 A.M. Gregory finally got to the right story and gave a rather detailed confession. Thereupon the detectives decided that they would visit the scene of the crime and have a re-enactment. Detective Flynn testified that they drove around various sections of Brooklyn until Gregory was able, finally, to direct them to the house on Clinton Street where the crimes had taken place.

The re-enactment of the crime was completed at about 2:30 A.M. and the boy and both detectives returned to the station house for further interrogation. During this period the detectives were concerned with learning the identity and whereabouts of Gregory's 12-year-old accomplice, Gerald S. This questioning went on until about six or seven in the morning. Gerald S. was finally picked up about 8:00 A.M. and taken to the station for questioning. After some hours of questioning there, Gerald also confessed to the crime.

That same day both boys also directed the detectives to the place where they supposedly divided the loot and split apart. By the time these journeys ended it was well into the afternoon. The remainder of the afternoon was spent at the station house waiting for the District Attorney to appear with a stenographer to take a formal confession.

The District Attorney appeared at about 5:30 P.M. with a stenographer and statements were taken from both Gregory and Gerald. By the time these statements were given, Gregory had been in custody for 24 hours and Gerald for about 10 hours.

The two boys were finally deposited in Youth House at 9:30 that evening.

Before going on to the next episode in this bizarre case, some additional facts relating to this part of the case should be noted. When Gregory was first picked up, his parents were notified and they appeared at the police station. Detective Flynn stated that he informed them that an investigation of a serious nature was in progress and that, if they wanted the benefit of counsel, they were entitled to it.

The parents, whether due to ignorance or poverty, did not ask for or retain an attorney. They remained at the station house until around midnight and then left. During the period that they were in the station house they were not present at the interrogation. However, at one point Gregory was taken out to see them and, at Detective Flynn's request, they urged Gregory to tell the truth.

The day after Gregory and Gerald were placed in Youth House, Detective Flynn discovered that Gregory was locked up in a security ward at Kings County Hospital during the time that the crimes, to which he had confessed, were committed.

Disturbed that the confessions so painstakingly extracted would prove worthless, he rushed to Youth House around midnight that evening--the evening prior to the appearance in Family Court--and interrogated Gregory about a possible escape from Kings County. During this questioning, Gregory denied that he had escaped from Kings County the night of the crime. He told Flynn, however, that he knew that others had escaped and he knew how it could be done.

The next morning at Family Court, just prior to Gregory's appearance and the assignment of counsel, Flynn interrogated Gregory again. At this time Gregory, after first denying that he escaped, finally told Flynn that he had escaped from the security ward by using a broken spoon to open the lock on a fire exit door. Gregory also told him that he had returned to the ward--presumably almost immediately after the crime was committed. Miss Walsh's testimony would seem to indicate that the crimes were committed between 5:00 and 6:00 A.M. and that the assailant left the house between 5:30 and 6:00 A.M. Gregory was never missed at the hospital and was seen there at 7:00 A.M. that same morning. The hospital was some three and one-half miles from the place where the boys allegedly divided the loot and separated. The record indicates that the walking time at a normal pace is 50 minutes.

In any event, Detective Flynn was still not content. On October 22, 1964, three days after the respondent's appearance in Family Court and after the assignment of counsel, he again went to Youth House and again interrogated Gregory. This visit was also of the late evening variety.

During this interrogation two officials of Youth House were present. One of them testified that, during this questioning about a spoon, Gregory continually complained that he was tired and wanted to go to bed. At several points Flynn told Gregory that if he did not tell the truth he was going to get a court order that night and have him removed from Youth House. At one point Gregory was shown a key and asked if that was the one he used to escape. At first he replied 'No' and then he answered 'Yes because I'm tired. I want to go to bed.'

At the session, during some three hours of interrogation, Gregory reiterated the story about breaking out by the use of a broken spoon on the fire exit lock.

During the course of the trial at the Family Court, a psychiatrist who had treated Gregory at Creedmoor testified that he had had many conversations with Gregory and that he had formed a diagnosis that Gregory was a schizophrenic. When asked what he thought Gregory's reaction would be to the type of interrogation he had undergone, the psychiatrist replied that he believed that Gregory 'would be very anxious to get out of that situation and I think he has enough lack of judgment and lack of foresight that it wouldn't keep him from admitting to whatever he thought was expected so that he could get out of the immediate situation.'

The statements made to Detective Flynn as well as the statements made to the District Attorney were admitted over the objection of respondents' counsel. And the Family Court Judge found that they committed the acts charged.

The Appellate Division, in a 3 to 2 decision, affirmed the order of the Family Court adjudging the respondents to be juvenile delinquents.

The dissenting Justices found that 'the statements are both internally inconsistent and inconsistent with known events not mentioned in the statements.' 1 They voiced the view that these inconsistencies so impaired the weight and reliability of the statements as to render them worthless. In addition, they indicated their belief that the statements taken from both boys during the interrogation period were involuntary and that the fundamental principles of due process mandated the exclusion of these statements. (See In re Carlo, 48 N.J. 224, 225 A.2d 110.)

We believe that the statements taken from Gregory and Gerald were involuntary, as a matter of law, and that due process of law, to which these boys were entitled by the command of the Legislature, as well as the Constitutions of the State of New York and the United States, require a reversal of the order of the Appellate Division.

In People v. Lewis, 260 N.Y. 171, 177, 183 N.E. 353, 355, 86 A.L.R. 1001 we held that, since Juvenile Court proceedings were not criminal in nature, 'there was neither right to nor necessity for the procedural safeguards prescribed by constitution and statute in criminal cases.' We specifically held that the privilege against self incrimination was not available in such proceedings and that a defendant could be compelled to testify.

We need not here engage in an extensive re-examination of that case because we believe...

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