61 A.D.2d 299, People v. Dunaway

Citation:61 A.D.2d 299, 402 N.Y.S.2d 490
Party Name:People v. Dunaway
Case Date:March 01, 1978
Court:New York Supreme Court Appelate Division, Fourth Department

Page 299

61 A.D.2d 299

402 N.Y.S.2d 490

PEOPLE of the State of New York, Appellant,


Irving Jerome DUNAWAY, Respondent.

Supreme Court of New York, Fourth Department

March 1, 1978.

[402 N.Y.S.2d 491] Lawrence T. Kurlander, Dist. Atty., Rochester, for appellant (Melvin Bressler, Rochester, of counsel).

Edward J. Nowak, Rochester, for respondent (James M. Byrnes, Rochester, of counsel).


MOULE, Justice.

This is an appeal by the People from an order granting defendant's motion to suppress certain inculpatory statements and sketches made by him in which he admits his involvement in the murder of a pizza shop proprietor.

On March 26, 1971, two men entered a pizza shop in Rochester and, in the course of an attempted robbery, one of them shot and killed the proprietor. Four months later, on August 11, 1971, three police officers went to defendant's home to question him about his participation in the robbery. According to the police testimony, defendant was asked to come downtown to talk and did so voluntarily. Defendant was taken to police headquarters where he was placed in an interrogation room and given his Miranda warnings. He then waived his right to counsel and consented to talk to the detectives. He made an incriminating statement, which was repeated for a stenographer. He also made two sketches useful to the prosecution. The following day defendant asked to see one of the police officers and made a second more complete statement.

Defendant was indicted on two counts of murder and one count of attempted robbery. Following a hearing on defendant's motion to suppress his statements and sketches, the motion was denied. After a jury trial defendant was convicted of felony murder and attempted robbery and sentenced to a term of 25 years to life on the murder count and a maximum term of 15 years on the attempted robbery count, the sentences to run concurrently. Defendant appealed his conviction and this court and the Court of Appeals affirmed without opinion (42 A.D.2d 689, 346 N.Y.S.2d 779; 35 N.Y.2d 741, 361 N.Y.S.2d 912, 320 N.E.2d 646). The Supreme Court of the United States granted certiorari and thereafter vacated the judgment and remanded the case to the Court of Appeals for further consideration in light of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (Dunaway v. State of New York, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 705). The Court of Appeals remitted the case to the Monroe County Court for a factual hearing on whether defendant was detained and, if so, whether there was probable cause for the detention and, if there was a detention and probable cause was not found, whether the making of the confessions and the accompanying sketches was rendered infirm by the illegal arrest (People v. Dunaway, 38 N.Y.2d 812, 813-14, 382 N.Y.S.2d 40, 41, 345 [402 N.Y.S.2d 492] N.E.2d 583, 584). It is from the decision and order of the County Court granting defendant's motion to suppress his statements and sketches that the People appeal.

We believe that this case is controlled by the recent decision of the Court of Appeals in People v. Morales, 42 N.Y.2d 129, 397 N.Y.S.2d 587, 366 N.E.2d 248 in which the Court rearticulated the views expressed in its earlier Morales decision (22 N.Y.2d 55, 290 N.Y.S.2d 898, 238 N.E.2d 307) that "(l)aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual's Fifth and Sixth Amendment rights" (42 N.Y.2d at 135, 397 N.Y.S.2d at 590, 366 N.E.2d at 251). " '(A) policeman's right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter' " (42 N.Y.2d at 137, 397 N.Y.S.2d at 591, 366 N.E.2d at 252, quoting from People v. DeBour, 40 N.Y.2d 210, 219, 386 N.Y.S.2d 375, 382, 352 N.E.2d 562, 569).

Here, based upon information supplied to the police by an informant, who had picked out a picture of defendant from a file of photographs, the police questioned an individual who was serving time in jail and who informed them that defendant and one Adams had participated in the robbing and shooting of the pizza shop proprietor. Although this hearsay information did not constitute probable cause to arrest defendant, in our opinion, it certainly raised a "reasonable suspicion" in the minds of the police so as to warrant their detention of defendant for questioning under Morales.

Furthermore, the record, which includes the transcripts of both suppression hearings, shows that defendant was picked up at approximately 8:00 A.M. on August 11, 1971 at a house on Walnut Street. According to the testimony of the police officers, they approached defendant at the house and asked him if he would come downtown to talk with them. The police assert that they never touched or abused defendant and that as they drove downtown to the station, they never spoke to defendant. When defendant arrived at the police station he was placed in an interviewing room and at about 9:00 A.M. was given his Miranda rights. Allegedly he told the police that he understood his rights and that he consented to waive them and discuss the matter. Most importantly, defendant testified at the suppression hearing before the trial that he was not threatened or abused by the police and that the statements he made to them were voluntary.

This testimony shows that the police legally detained defendant for questioning and that such questioning was fair, reasonable, within proper limits and under carefully controll conditions which were ample to protect his Fifth and Sixth Amendment rights. Moreover, as in Morales, the crime committed here was a brutal and heinous felony, the period of detention was brief and defendant was fully advised of his constitutional rights. We are not dealing here with a situation where the defendant was arrested, searched and accused of a crime without even a scintilla of evidence casting suspicion upon him (see, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, supra; People v. Martinez, 37 N.Y.2d 662, 376 N.Y.S.2d 469, 339 N.E.2d 162). Rather, this case involves a brief detention for interrogation based upon reasonable suspicion, where there was no formal accusation filed against defendant and where great public interest existed in solving a brutal crime which had remained unsolved for a period of almost five months (People v. Morales, 42 N.Y.2d 129, at 136, 397 N.Y.S.2d 587, 590, 366 N.E.2d 248, 251, supra ). In our opinion, the police conduct here is proper under Morales.

Further, even if we were to find that the actions of the police officers constituted an illegal detention of defendant, there was a sufficient attenuation of this primary taint to render the subsequent inculpatory statements and sketches admissible. As the Supreme Court stated in Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d [402 N.Y.S.2d 493] 416, supra, "(t) he question whether a confession is the product of a free will * * * must be answered on the facts of each...

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