People v. Bertolo

• Citation: 102 A.D.2d 193,478 N.Y.S.2d 19
• Parties: The PEOPLE, etc., Respondent, v. Joseph F. BERTOLO, Appellant.
• Decision Date: 04 June 1984
• Court: New York Supreme Court Appellate Division

Page 19

478 N.Y.S.2d 19

102 A.D.2d 193

The PEOPLE, etc., Respondent, v. Joseph F. BERTOLO, Appellant.

Supreme Court, Appellate Division Second Department.

June 4, 1984.

John F. Middlemiss, Jr., Hauppauge (Karl E. Bonheim, Hauppauge, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Francis P. Murphy, Sayville, of counsel), for respondent.

Before MANGANO, J.P., and O'CONNOR, WEINSTEIN, BROWN and NIEHOFF, JJ.

O'CONNOR, Justice.

PROLOGUE

At about noontime on October 19, 1980, the soft silence of Beaver Dam Park was suddenly shattered as a young girl, crying hysterically, ran from the park and on to her home, a short distance away. In response to her mother's frantic question, the child, between sobs, described how a man, whom she did not know, had forcibly held her head and completed an act of oral sodomy upon her.

Grabbing a baseball bat, the mother ran to the park but no one was there. "I * * * then ran home and I called the cops", she later related.

Thus begins the sad saga of the People of the State of New York against Joseph F. Bertolo.

THE HEARING

On October 28, 1980, Detective Robert J. Matedero, attached to the Third Squad of the Suffolk County Police Department, was working the 5:00 P.M. to 1:00 A.M. tour. Although not assigned to the Bertolo case, he received a telephone call that evening from a Mrs. Fonalledas who lived in the Islip area.

It is now 6:00 P.M.

Mrs. Fonalledas, whom he described as bordering on the hysterical, said she thought that the sodomist was Joseph Bertolo, who she said had previously been involved in an incident with a neighbor's child--named DePaolo--and she demanded to discuss the matter with the detective at once. On cross-examination, the detective said:

"was dropped because, quite frankly, my boss decided that we should definitely see what this woman had to say and go see her immediately".

Before leaving the squad room, Detective Matedero ascertained from a card index file that Bertolo had previously been arrested on two separate occasions on public lewdness charges relating to the DePaolo child. He did not know whether an information had been filed or if these cases were still pending, nor did he know whether appellant was represented by an attorney.

It is now 6:10 P.M.

Detective Matedero, now with a good lead which demanded prompt investigation, proceeded to the Islip area where he interviewed the 15-year-old DePaolo girl, who told him that Bertolo, who lived nearby, had on previous occasions exposed himself to her nine-year old sister. Mrs. Fonalledas provided him with rumor and gossip but supplied no concrete tie to the sodomy investigation. She did, however, say that she had seen Bertolo, at different times, behave in a grossly lewd and lascivious manner and that on occasion he had publicly displayed himself in a bizarre and obscene fashion.

Dawn Gianotti, 14 or 15 years of age, who lived across the street from Mrs. Fonalledas, verified the stories of Bertolo's weird conduct and mentioned that at times he drove a small brown car. Pieces of the mosaic began to fall in place and Detective Matedero decided to visit the Bertolo residence, two blocks away. There, in the driveway, was parked a small brown automobile.

It is now 8:00 P.M.

The detective then drove to the Police Department Central Records Division in Yaphank to get a picture of Bertolo to set up a picture spread, but upon his return neither Jane Doe ¹, the victim, nor Elizabeth Roe, her friend, could identify the appellant although both said that he looked familiar.

The two children and their mothers were then driven slowly past the Bertolo home and the tempo of the investigation sharply accelerated when both girls positively identified the car as the one they had seen that day at Beaver Dam Park.

Following a police consultation, it was decided to interview Joseph Bertolo that very evening.

It is now 11:45 P.M.

When Detective Matedero and his partner, Detective Graniello, went to the Bertolo home, they were greeted by Peter Bertolo, appellant's father, with the remark, "What did Joey do now?" Appellant was advised that the police wanted to talk to him about a crime that took place in the area and he agreed to speak to them.

Then, in the kitchen of his home, with his mother present, appellant was advised of his Miranda rights as Matedero read them from a printed police card. Bertolo said he understood his rights and agreed to speak to the detectives at the squad room without a lawyer.

It is now 11:55 P.M.

Leaving their names and telephone number with appellant's parents, the detectives drove the suspect directly to the Third Squad interview room, where the Miranda rights were again read from the police card.

Appellant made a full and detailed confession.

That confession was then put on tape but not until the Miranda rights were for the third time read to appellant and his answers to the questions were recorded on the tape itself.

It is now 12:30-12:45 A.M.

Then, using appellant's own language as he talked to Detective Matedero, the confession was typed on paper which had the Miranda warnings preprinted at the top of the first page, which appellant read and initialed and to which he inscribed his answer to each inquiry.

Appellant signed both pages of the typed confession which was then witnessed by Detective Graniello and notarized by Detective Matedero. At no time were promises or threats made to appellant nor was appellant handcuffed.

It is now 1:00 A.M.

The confessions gave a detailed description of the precise manner in which appellant committed the crime of sodomy upon Jane Doe.

It is these oral, written and tape-recorded confessions that appellant, by this appeal, seeks to suppress.

Following the confession and with appellant's consent and participation, a five-man lineup was viewed separately by Jane and Elizabeth, but neither child could make a positive identification.

With appellant's approval and co-operation, a voice identification lineup was then arranged. The five participants were told to say, upon command, in their normal speaking voice: "Would you two girls help me find my dog?" That was the precise language used by the man at Beaver Dam Park. Each girl was brought into the room separately and, without hesitation, positively identified Bertolo's voice as the voice of that man.

Because of the physical layout of the lineup room and the viewing room, it was not possible for either the participants or the viewers to see each other during the process.

While statements concerning the voice identification procedures were being taken from Jane and Elizabeth, Jane's mother was put in the lieutenant's office, a room separated from the main squad room, where Bertolo had been brought for necessary processing.

The mother, on her own, wandered out into the squad room and saw there a man handcuffed to a desk. Assuming him to be the molester of her daughter, she shouted, "How could you do this to my baby?" Bertolo blurted out, "I am sorry for what I did to your daughter. I won't do it again. I promise I won't go near the park anymore".

Upon the ground, inter alia, that this statement was obtained in violation of his New York constitutional right to counsel, appellant seeks its suppression.

Appellant testified in his defense that during the ride from his home to the precinct the detectives told him that things would go easier for him if he confessed. In substance, he admitted to committing sodomy but only because the detectives promised him he could go home if he confessed; he denied that he received any Miranda rights at his home. He conceded that the rights were read to him at the precinct, that he waived those rights, that he agreed to speak to the detectives without an attorney, and that he confessed a half hour after his arrival at the squad room and acknowledged his initials and signature on his written confession. He said that while his confession was being taped, he was asked whether he wanted a lawyer and that he replied, "Yes", but he saw the detective shake his head no; he then said "No". He testified that he changed his answer "I wanted to go home, and he told me that if I said that I did it, you know, I would go home that night". He said he told his father, in the presence of both detectives, that he wanted a lawyer.

Peter Bertolo, the father, then testified that when his son asked for a lawyer in the squad room, he thought to himself, "He's got a lawyer The record at this point is interesting.

"Q So you did not say anything to the detectives about this other lawyer, about this other case?

"A No, I didn't say nothing about that to him. I was just thinking this to myself

* * *

* * *

"THE COURT: What did you say?

"THE WITNESS: 'You have a lawyer'. That's all I said. But I don't know how loud I said it. Whether he heard it or anybody else heard it. But I was thinking that anyhow" (emphasis added).

In rebuttal, Detective Graniello confirmed the testimony of Detective Matedero concerning the Miranda warnings, both at appellant's home and at the precinct. He was present when appellant was asked whether he wanted a lawyer. He said he heard Bertolo say, "Yeah, no, no". He denied that Detective Matedero shook his head and said that Bertolo's response, "no, no" was in response to the question, do you want a lawyer. He said further that when Bertolo met his father in the precinct he did not ask for an attorney.

At this point, the hearing was adjourned at appellant's request so that he could call his mother as a witness on the following day. However, Mrs. Bertolo declined to testify and appellant decided not to call her.

Before the hearing was recessed the parties stipulated: (1) that on October 28, 1980 there were two misdemeanor charges pending against appellant; and (2) that both cases involved charges of public lewdness and that they were on the ready trial calendar. In both cases, the Suffolk County Legal Aid Society represented appella...