In re Luis P.

• Decision Date: 12 April 2018
• Docket Number: 5001
• Parties: IN RE LUIS P., a Person alleged to be a Juvenile Delinquent, Appellant. Presentment Agency
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 59

74 N.Y.S.3d 221

IN RE LUIS P., a Person alleged to be a Juvenile Delinquent, Appellant. Presentment Agency

5001

Supreme Court, Appellate Division, First Department, New York.

ENTERED: APRIL 12, 2018

Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for presentment agency.

Rolando Acosta, P.J., Peter Tom, Troy K. Webber, Ellen Gesmer, Anil C. Singh, JJ.

SINGH, J.

The primary issue on this appeal is whether the presentment agency adequately proved beyond a reasonable doubt that appellant's oral and written statements were voluntary. We find that the presentment agency met its burden of proving the voluntariness of appellant's oral and written statements, and therefore affirm the order of disposition adjudicating him a juvenile delinquent.

As a preliminary matter, Family Court's factual findings are based in part on credibility determinations that are entitled to deference (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ; Matter of Cy R., 43 A.D.3d 267, 268, 841 N.Y.S.2d 25 [1st Dept. 2008], lv denied 9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007], cert denied 552 U.S. 1320, 128 S.Ct. 1891, 170 L.Ed.2d 762 [2008] ). Where the court "carefully considered the relevant circumstances, including demeanor," this Court will not disturb these credibility determinations ( Matter of Michael S., 303 A.D.2d 170, 171, 754 N.Y.S.2d 886 [1st Dept. 2003] ; see Matter of Alberto R., 84 A.D.3d 593, 923 N.Y.S.2d 91 [1st Dept. 2011] ). After reviewing the record¹ , we present the facts as determined by Family Court and find no basis to disturb these findings.

From July 16th to July 30th 2014, L.F. visited his father, Joshua M. in his apartment complex in the Bronx. L.F. lives with his mother, Cynthia M. Joshua M. lives in the same apartment complex as his girlfriend, Lizbeth S., who also has a son, the appellant in this case. At the time of the complained-of incident, L.F. was 9 years old and appellant was 13 years old. Appellant did not live with his mother because as a child, he was sexually abused by his brother. In May 2014, the Administration for Children's Services placed appellant in the care of his grandmother after the Family Court made a finding of child neglect against Lizbeth for failing to protect appellant from his brother.

During most of this visit, L.F. stayed with his grandmother on the second floor of the apartment complex. However, one night—all parties are unclear as to which specific night—L.F. stayed in Lizbeth's apartment with Joshua M. and appellant.

Appellant and L.F. stayed in one room with bunk beds and Joshua M. and Lizbeth stayed in the other bedroom. Around noon on the day in question, appellant entered the room where L.F. was sleeping on his stomach.

Appellant pulled down L.F.'s pants and placed his "peanuts" in L.F.'s mouth and anus. L.F. explained that "peanuts" are something used to "[p]ee in the bathroom." When appellant put his penis in L.F.'s anus, he moved up and down while he pulled L.F.'s shoulders so that L.F. simultaneously moved up and down. Appellant then stopped and turned L.F. around, so that his back was on the mattress. He then put his penis in L.F.'s mouth while using his hands to move L.F.'s head up and down. After the incident, appellant did not speak, and he left the room.

Three days after returning from this visit, L.F. told his mother that appellant had "raped [him]." L.F. had used this specific language after watching several episodes of Law & Order. After this revelation, Cynthia took L.F. to the Children's Hospital at Montefiore Medical Center and was referred to the Butler Child Advocacy Center (CAC) by his primary care physician. The Montefiore records contain nearly the same accusations as earlier described.

At CAC, Dr. Linda Cahill performed a physical examination that revealed only a small internal anal fissure, which is a finding not specific to sexual abuse. L.F. was also tested for sexually transmitted diseases, with negative results.

At some time prior to September 25, 2014, Lizbeth agreed to bring appellant to the Bronx Special Victims Unit office to speak with New York City Police Detective James Barrenger. On September 25, 2014, appellant and his grandmother, who was appellant's legal guardian, arrived at the precinct. When Lizbeth arrived at the precinct, appellant and Lizbeth were informed by Detective Barrenger that they were going to be interviewed and were escorted to the juvenile interrogation room. Once in the interrogation room, Detective Barrenger recited the simplified Miranda warnings to both appellant and Lizbeth that the NYPD specifically uses for juveniles.² After reading each warning, Detective Barrenger asked if they understood and after hearing their affirmative statements, he would write down "yes" after each warning. Detective Barrenger then asked, "[N]ow that I have advised you of your rights, are you willing to answer questions." Both appellant and his mother responded, "Yes," at which point appellant, Lizbeth and Detective Barrenger all signed the bottom of the form. During this time, neither appellant nor his mother asked Detective Barrenger any questions, asked to stop or requested a lawyer.

Detective Barrenger then informed appellant and Lizbeth that he was there to speak about the incident with L.F. At this point, appellant stated that he did not want to talk about the incident with his mother present. The detective asked Lizbeth "if she was all right with that, if she wanted to leave the room. She said she was okay with it. She complied and she left the room." Detective Barrenger did not suggest that Lizbeth should leave the room and would have preferred if she had stayed.

After Lizbeth left the room, Detective Barrenger asked appellant to explain the incident between him and L.F. Appellant responded that he put his "peanuts" inside L.F.'s mouth and "butt." Detective Barrenger asked appellant what he meant by "peanuts" and after some discussion, appellant admitted that he meant his penis. Appellant was then asked by Detective Barrenger if he would like to write an apology letter to L.F. apologizing for what had happened. Appellant responded that he would like to write the apology letter. At no point did Detective Barrenger tell appellant that this letter would be used in court against him. Detective Barrenger gave appellant a pen and paper, told him to write the letter in his own words and left the room while appellant wrote the letter.³

When appellant appeared to be finished, Detective Barrenger reentered the room and read the letter out loud with appellant. Detective Barrenger gave appellant an opportunity to make changes or corrections. Appellant had already crossed out words and did not make any other changes. In all, the Miranda warning and waiver, and appellant's oral and written statements lasted about 15 to 20 minutes. During the interview, appellant was not handcuffed and Detective Barrenger was in business attire and was unarmed. Detective Barrenger did not make any promises or threats to induce appellant to write the letter, and did not tell appellant or imply that he would be allowed to go home if he wrote the letter. After Lizbeth left the room, appellant never asked Detective Barrenger to stop the interview or have his mother return to the room, and never asked for a lawyer.

On December 10, 2014, the Corporation Counsel of the City of New York filed a designated felony act petition in Bronx County Family Court. The petition charged appellant, who was 13–years–old at the time, with the commission of acts that, if done by an adult, would constitute the crimes of criminal sexual act in the first degree (two counts), sexual abuse in the first degree (two counts), sexual misconduct (two counts), and endangering the welfare of a child. Attached to this petition was a supporting deposition from L.F. and Detective Barrenger alleging that appellant put his "peanuts" in L.F.'s mouth and anus. Additionally, attached to the petition was appellant's apology letter to L.F.

A Huntley hearing was conducted on February 5, 2015. At the hearing, appellant's grandmother, Julia C., testified that she brought appellant to the police station on September 25,

2014, she met Lizbeth at the station, and that when Detective Barrenger arrived, he escorted appellant and Lizbeth, leaving her in the lobby. A short time later, Lizbeth rejoined her, and appellant and Detective Barrenger were alone in the room for about 15 minutes.

Appellant testified that when Detective Barrenger read each Miranda warning he did not respond at all because he did not understand any of the warnings being given. He did not tell Detective Barrenger this because he was scared and although he did sign the form, he did not tell Detective Barrenger that he was willing to answer questions. He also testified that his mother did sign the form but left the room when Detective Barrenger asked her to step out. Appellant did not want Lizbeth to leave the room and he did not say to Detective Barrenger that he would not talk about L.F. in front of his mother. According to appellant, after Lizbeth left the room, he refused to answer any of Detective Barrenger's questions and after the detective accused him of putting his "peanuts" in L.F.'s mouth and anus, appellant told him that the accusation was not true.

Appellant testified that he wrote and signed the apology letter because Detective Barrenger told him that it was what was best for him. Appellant stated that he did not know what an apology letter was and that he just wrote down what the detective said. Appellant also testified that he would not use the word "peanuts" to refer to his penis and instead used the word "[d]ick." Finally, during this time he did not ask for his mother because once the detective asked her to step out, he didn't realize that either his mothe...