People v. Brown

• Decision Date: 01 May 1981
• Citation: 109 Misc.2d 366,438 N.Y.S.2d 955
• Parties: The PEOPLE of the State of New York v. Richard BROWN, Defendant.
• Court: New York Supreme Court

Page 955

438 N.Y.S.2d 955

109 Misc.2d 366

The PEOPLE of the State of New York v. Richard BROWN, Defendant.

Supreme Court, New York County.

May 1, 1981.

Robert M. Morgenthau, Dist. Atty., New York County, by Joseph Dubinsky, Asst. Dist. Atty., New York City, for the People.

Robert E. Levy, New York City, for defendant.

Margery Evans Reifler, Associate Director and Counsel Criminal Justice Agency, New York City, for the witness subpoenaed by the People.

SHELDON S. LEVY, Justice:

Can information obtained directly from a defendant--without Miranda warnings and in the absence of counsel--for use on arraignment in determining eligibility for recognizance or bail release, be employed against the defendant at trial?

In the past three years, a handful of judges, including this court, have dictated decisions on this subject off the Bench and offhand. The more than 200 employees of the New York City Criminal Justice Agency (hereinafter CJA), whose diligent interviewers gather and process such necessary information, deserve something better!

The defendant, Richard Brown, was indicated inter alia for robbery in the first and second degrees. The basic charge was that, at knife-point, he and a companion forcibly stole a sum of money from a young man who, at that time, was a messenger for the New York Daily News.

In the course of the People's primary proof, which included positive identifications by the victim and by a police officer who joined in a subsequent chase, the prosecutor--as an added demonstration of guilt--also attempted to show a "chain of custody" and to equate a stylized, beige jacket, which the defendant was seen wearing in jail, with a similar jacket allegedly worn by one of the perpetrators during the robbery. In accordance with this objective, the trial assistant proposed to elicit, through the subpoenaed testimony of a CJA interviewer, the defendant's asserted residence at the time of the incident (which was different from the address given to the arresting officer) and defendant's claim that his common-law wife (who admittedly was last seen with him just after the robbery) was then living with him at the said residence.

This type of biographical data had, of course, been secured from the defendant by a CJA employee as a part of the standard prearraignment interview procedures. Accordingly, as defendant voiced legal and evidentiary objections to this offer of proof, CJA counsel appeared and moved to quash the subpoena already served as a threat to the entire CJA program. The present decision is the result of this joint opposition.

Preliminarily, it should be noted that CJA is a New York State private, not-for-profit corporation organized in 1977 and independent of formal regulation by or in connection with any government entity. Its certificate of incorporation defines its only purposes as the improvement of the administration of justice and the servicing of those who operate and are affected by the criminal justice system. It is a derivative of the Vera Foundation's pilot project in 1961 for the encouragement of recognizance release for indigent defendants. It now serves all detainees, whether indigent or not. CJA's primary responsibilities include: the prearraignment interviewing of almost all criminal defendants in New York City concerning their backgrounds, employment, financial resources and family and community ties; the preparation for the arraignment court of reports with recommendations on a defendant's potential for release on his own recognizance (accordingly referred to as "ROR" sheets); and the notification to those so released of upcoming court dates.

The work of CJA in this regard is absolutely essential to a fair and evenhanded dispensing of justice. Competent studies have fully documented the many disadvantages endured by incarcerated defendants--both pretrial and postconviction--as compared to their bailed or paroled counterparts (see 1961-1971 Report, Vera Institute of Justice, "Programs in Criminal Justice Reform", Part II). Lack of adequate ability to prepare a defense, to consult with counsel, to communicate with relatives and friends, to locate witnesses and to gather evidence, are but a few, pretrial; as well as a greater likelihood of conviction in all events. Post-conviction, the detainee can expect a more severe sentence.

Moreover, CJA performs an invaluable service in affording complete, and, where possible, verified pertinent information to those involved in the hearing concerning the constitutionally mandated right of a defendant to be free from excessive bail (U.S.Const., amend. VIII; N.Y.Const., art. I, sec. 5) and the decision whether, pending trial, an order of recognizance is justified (CPL 510.30). The data thus collected and contained in CJA's ROR sheets cover, at least, three of the specified criteria to be employed by the court in such discretionary release determination upon arraignment (see CPL 510.30, subd. 2[vi]).

In point of fact, the ROR sheet is used extensively by defense counsel in checking with defendant the facts bearing upon the prospective oral application for pretrial recognizance or bail and as a handy guide in expounding thereon before the court.

To the assistant district attorney in the Arraignment Part, the ROR sheet is an almost indispensable tool from which he can buttress a decision to consent to release, if the confirmed ROR data demonstrate firm community roots, or to attack such an application and recommend substantial bail, if the ROR report proves unfavorable to the defendant.

It is also this same ROR sheet that is continually employed by the court for rapid reference and ready guidance in relation to a defendant's community roots, current family residence, and employment status, so that a sensible, fair and informed decision can be made with respect to the conditions of any securing order or of a defendant's possible liberty while awaiting trial.

Like reconnaissance troops in an army, they also serve--and serve well--who gather vital information for use on the legal battlefronts in the war for justice. CJA's usefulness can neither be overemphasized nor its employees too highly praised.

Moreover, the linchpin of the program has always been to secure the full and honest cooperation of the interviewees and to provide thereby complete and candid information to the court. However, when CJA representatives arrive, these defendants are already in custody and in a condition of emotional upheaval, of maximum stress and of unusual excitement. They are newly arrested and are often placed in a cramped jail cell with an abundance of other prisoners. Usually, their sole thought is to secure a rapid release from detention, whether on recognizance or reasonable bail. Frequently, they have neither seen or spoken to friends, relatives or even a lawyer. They are rightly wary of speaking to strangers at all--and especially to one who is inquiring about intimate details of their lives. No Miranda warnings are provided. No defense attorney is present. Defendants are affirmatively informed that the information requested will be considered by the judge in connection with their recognizance or bail applications, that their cooperation is essential to a favorable recommendation, and that their statements can be used against them if they violate any release conditions.

Obviously, a defendant should be permitted voluntarily to give biographical data to a CJA staff member--with as free a mind as possible under the attendant circumstances--in an attempt to put his arguments for recognizance release or attainable bail in the best possible light. However, if a defendant is also advised that any statements made--even if true and innocuous at the time--might later be used affirmatively at trial to help prove guilt, many defendants will refuse to converse with CJA personnel at all and others will limit their responses in a fashion that will seriously impede their chances for immediate freedom. The detrimental effect of such a reaction on the defendants themselves and on the entire CJA program is clear, and the heretofore innumerable successes of the ROR plan will be consequently and substantially reduced.

In addition, any threat to or infringement upon the continued vitality and viability of this and similar programs throughout the state would be antithetical to the public policy of this state and to the proper functioning of the courts (cf. State v. Winston, 300 Minn. 314, 318-319, 219 N.W.2d 617, 620). Through the years, as indicated, CJA and its predecessors have developed an efficient and effective operational plan which has benefitted immeasurably both bench and bar and which has achieved outstanding results, particularly in obtaining fair and expeditious release conditions for deserving detainees; in enhancing the equitable treatment of indigent defendants; and in lessening materially thereby the prospective burden of overcrowding in places of confinement. If the CJA system is jeopardized, the defendants, the courts, and the public will most certainly be the prime losers. Neither law, nor logic, nor practicality would be served by permitting prosecutorial prerogative to override common sense and simple justice in this regard. Plainly put, acknowledging the multiple merits and obvious advantages of the CJA program, why should any step be taken to eviscerate or destroy it? Why revert our criminal justice system to one of criminal injustice?

Strictly then, as a matter of public policy and fundamental fairness, and especially since all of the circumstances under which this ROR information is obtained militate against its uninhibited use by the prosecution, all statements secured from a defendant during this prearraignment interrogation process should be barred from purely affirmative use by the People on both their direct and rebuttal cases (see People v. Rodriquez , 48 A.D.2d 691, 367 N.Y.S.2d 840 affd. 39 N.Y.2d 976, 387 N.Y.S.2d 110, 354...