People v. Anonymous

• Decision Date: 22 October 1968
• Citation: 294 N.Y.S.2d 248,58 Misc.2d 13
• Parties: PEOPLE of the State of New York, Plaintiff, v. Edwin R. ANONYMOUS and Gerard S. Anonymous, Defendants.
• Court: New York County Court

Page 248

294 N.Y.S.2d 248

58 Misc.2d 13

PEOPLE of the State of New York, Plaintiff, v. Edwin R. ANONYMOUS and Gerard S. Anonymous, Defendants.

Nassau County Court, Special Term, Part I.

Oct. 22, 1968.

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

James L. Dowsey, III, Syosset, for defendant, Edwin R.

Harold Goerlich, Syosset, for defendant Gerard S.

DAVID T. GIBBONS, Judge.

This Huntley-Miranda type hearing was conducted to determine the admissibility and voluntariness of certain admissions, statements or confessions allegedly made by the two youthful offender defendants charged with a burglary alleged to have been committed in a dwelling at 18 Radnor Road, Plainview, New York. Code of Criminal Procedure, Sections 395 and 813--f et seq.

The Court finds the facts as follows: Detective George Wischerth, of the Nassau County Police Department, in the course of investigating said burglary, went to the home of the defendant, Edwin R. on February 28, 1968. He was met at the door by the boy's mother. He identified himself and told her that her son may be involved in a burglary. Mrs. R. summoned her son, who was upstairs, to come down. When the boy came into the presence of the detective, the detective asked his name, introduced himself and said that he was investigating a burglary. He then told the boy that 'he would have the right to remain silent, that any statement that he would make could be used as evidence against him in court, that he has a right to consult with a lawyer before answering any questions, and if he couldn't afford an attorney one would be present for him--one would be furnished for him and without answering any questions, any further questions he has the right to talk with the attorney first.'

After giving such advice, he asked if he Understood and the young man said, 'yes'. The detective then informed Mrs. R. that he was going to take the boy to the 8th Precinct and that she could accompany him if she wished. She told the detective that her husband would be coming home from work in a short time and that she would then go to the station house with him.

At about 7 P.M. the defendant's father and mother arrived at the station house. Up to that point the detective had not asked any questions. The boy's father was advised as to what had transpired. Again, the detective, in the presence of the father, advised the boy concerning his constitutional rights to the aid of counsel and his privilege against self-incrimination as prescribed by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The detective then asked the boy if he Understood what he had just mentioned and the defendant, R. again answered, 'yes'.

The detective then commenced to ask him questions and the boy then gave an oral inculpatory statement. The parents of the defendant, Edwin R., were present at all times while he was being interrogated. The young man was not threatened, nor was any force or coercion used against him. No requests made by the boy were denied. A request by the detective for Edwin R. to sign the typewritten statement was refused by the boy after conferring with his father. It is admitted that nothing was said by the defendant or his parent about a lawyer. There was no express statement by the defendant, Edwin R., waiving his right to the aid of counsel or to submit to interrogation without counsel.

On the same night, shortly after 9 P.M., while Detective Wischerth was at the 8th Precinct Station House, the defendant, Gerard S., came to the station house with his father. They were brought into a room by themselves. Detective Wischerth entered the room, and identified himself as a detective, and told them he was investigating a burglary at 18 Radnor Road, Plainview, New York. He advised the defendant, in the presence of his father, that 'he has the right to remain silent, and that any statement that he did make could be used as evidence against him in court, that he has a right to consult with an attorney, or to have an attorney present before answering any questions, if he could not afford an attorney, one would be furnished for him, and before any further questioning or answering of questions, he would have this right to consult with an attorney'. The detective then asked the boy if he Understood what he just said, and the boy said that he did. At this time Mr. S. stated that if his son was involved that it was his wish that his son truthfully answer all questions put to him. The detective then began the interrogation with defendant Gerard S.' father present at all times while he was being questioned. The defendant, Gerard S. refused to give a written statement after consulting with his father. He did, however, give an oral inculpatory statement. No threats, force, or coercion were used, nor was the defendant put in fear by the detective. No requests were made by the boy that were not honored. There was no express statement by the defendant declining the aid of counsel or an expression of willingness to submit to interrogation without counsel.

The Court finds from the evidence herein that both defendants were subjected to in-custody interrogation and, therefore, subject to the safeguards prescribed by Miranda v. State of Arizona (supra).

The specific mandate of Miranda v. State of Arizona (supra) in this regard, (with emphasis added) is expressed on page 475, 86 S.Ct. on page 1628, as follows:

'An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley...