Charles B., Matter of

• Decision Date: 13 July 1981
• Citation: 441 N.Y.S.2d 132,83 A.D.2d 575
• Parties: In the Matter of CHARLES B. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 132

441 N.Y.S.2d 132

83 A.D.2d 575

In the Matter of CHARLES B. (Anonymous), Appellant.

Supreme Court, Appellate Division Second Department.

July 13, 1981.

William E. Hellerstein, New York City, and Charles Schinitsky, Brooklyn (Wendy Sue Lauring, New York City of counsel; Jennifer Garvey, trial counsel, Brooklyn), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Claire Friedman, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before MANGANO, J. P., and GIBBONS, RABIN, GULOTTA and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a juvenile delinquency proceeding, the appeal is from an order of the Family Court, Kings County, dated August 1, 1979, which, upon a finding that appellant had committed an act which, if committed by an adult, would constitute the crime of robbery in the first degree, adjudicated him a juvenile delinquent and placed him with the Division For Youth, Title II.

Order reversed, on the law, without costs or disbursements, and delinquency petition dismissed.

Appellant's guilt was not proved beyond a reasonable doubt. He was arrested by a police officer approximately 100 feet away from where a robbery had taken place five minutes before. At trial, the victim identified appellant solely upon the basis of his having worn the "same" blue jacket and maroon pants as the robber.

The complainant admitted that he did not see the face of the person who wielded a tree branch and relieved him of his money, because the robber wore a hood. Under these circumstances, and where the commission of the crime and the subsequent arrest of the appellant were not contemporaneous, guilt was not adequately established.

MANGANO, J. P., and RABIN and O'CONNOR, JJ., concur.

GIBBONS, Justice, concurs insofar as the majority has reversed the order, but otherwise dissents and votes to remit the proceeding to the Family Court for a new hearing, with the following memorandum:

Although I share the view of Justice GULOTTA that testimony of any peculiar or distinguishing characteristics such as similarity of general appearance, size, voice, features and coloration of clothing by a witness, who observed the alleged offender in close proximity to the scene of the crime and shortly thereafter, may provide competent evidence of identification for evaluation by the fact finder (People v. Spinks, 37 A.D.2d 424, 326 N.Y.S.2d 261), I am, however, of the opinion that a reversal is warranted for the reason that the prosecution improperly introduced into the case evidence of appellant's failure to respond to police questioning at the time of his arrest. This error constituted an impermissible intrusion upon appellant's constitutional right against self incrimination and deprived him of a fair trial.

The obvious purpose of informing the court that the appellant remained silent when questioned by the police officer in the hallway into which he had run was to create an inference of guilt. This evidence was in total disregard of the appellant's constitutional right against self incrimination.

In People v. Von Werne, 41 N.Y.2d 584, 588, 394 N.Y.S.2d 183, 362 N.E.2d 982, the court held:

"True, this defendant was not under formal arrest when interrogated in his own residence by the police officer. Yet the absence of a formal arrest is not dispositive here. A defendant in a criminal case has the right, granted by both the Federal and State Constitutions, to refuse to incriminate himself. (U.S. Const., 5th, 14th Amdts.; N.Y. Const., art. I, § 6.) The point of the cases is that a defendant's exercise of his constitutional right may not be used against him by the prosecution. (Griffin v. California, 380 U.S. 609, 615 The only apparent purpose of informing the jury that the defendant had elected to remain silent during police interrogation is to permit them to infer consciousness of guilt. The use of such proof for this, its only purpose, is not permissible. (People v. Al-Kanani supra.)"

In People v. Conyers, 49 N.Y.2d 174, 182, 424 N.Y.S.2d 402, 400 N.E.2d 342, the court held, in the same vein:

"a defendant's decision to remain silent at the time of arrest is in and of itself an assertion of a basic constitutional privilege. Thus, to allow that silence to be used against a defendant is to place a burden upon the direct exercise of a fundamental right." (Emphasis added.)

This court, in People v. Gilmore, 76 A.D.2d 548, 550, 430 N.Y.S.2d 854, in defining the three distinct intervals following the commission of a crime as the same pertain to the appellant's privilege under each to assert his right to remain silent under the Fifth Amendment of the Constitution of the United States, held as follows:

"The differing legal consequences flowing from such silence require a consideration of three distinct intervals: (1) the prearrest period, meaning that period of time after a crime has been committed but before the police have made any affirmative contact with the defendant; (2) the postarrest period, referring to that time after Miranda warnings have been given (see Miranda v. Arizona, 384 U.S. 436 and (3) the 'time of arrest', which refers to the amorphous block of time after affirmative contact has been made between police and suspect, but prior to the communication of constitutional rights. " (Emphasis added.)

At the time when the police officer confronted the appellant in the hallway and questioned him, such "affirmative contact habeen made between police and suspect" herein as to designate that encounter as the "time of arrest" within the meaning of People v. Conyers (supra).

The prosecution's impermissible eliciting of evidence of appellant's silence, under the circumstances of this case, although not objected to at the trial, represents an error of constitutional proportions involving a fundamental right.

Although the police officer's inquiry was both necessary and proper in the course of investigating the robbery, it was, nevertheless, neither relevant nor in issue at the trial, and any reference to appellant's refusal to respond slanted the fact-finding process against him by impermissibly suggesting a consciousness of guilt, thereby depriving him of a fair trial. In the light of the prejudicial effect of this information, coupled with the less than overwhelming proof of identification, it cannot be said that there was no reasonable possibility that this error did not contribute to the finding of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Consonant with the holding in Ivan v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659, it is now the established law in this State, "that fairness requires that no distinction be made between adults and juveniles in evidentiary matters." (Matter of Robert P., 40 A.D.2d 638, 639, 336 N.Y.S.2d 212.)

Matter of Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, guaranteed to a juvenile the same constitutional safeguards of right to counsel, right of confrontation, privilege against self incrimination, and the standard of proof of guilt beyond a reasonable doubt as are afforded an adult. The same concerns are embraced within the statutory format of this State. Section 744 (subd. of the Family Court Act mandates, inter alia, that "evidence that is competent, material and relevant may be admitted in a fact-finding hearing." Section 741 (subd. of the Family Court Act directs the court to advise the accused juvenile of his "right to remain silent", and where this obligation was not fulfilled by the court, the order was reversed and the matter was remanded for a new fact-finding hearing in Matter of Troy L., 53 A.D.2d 615, 384 N.Y.S.2d 22.

Here, Police Officer Toby's testimony concerning appellant's silence at the time of his arrest was not made any less prejudicial because it may have been offered gratuitously, nor was it hereby a lesser intrusion upon the appellant's constitutional right against self incrimination so as to diminish the improper inferences suggested thereby to the fact-finder, in violation of the rule expressed in People v. Von Werne (supra) and People v. Conyers (supra) because the appellant was a minor.

To now hold, as does my learned colleague who would affirm the order, that because this proceeding was conducted by a Family Court Judge sitting without a jury, that the possibility that such prejudicial evidence would have a persuasive...