People v. Castro

• Decision Date: 18 April 1983
• Docket Number: L-4
• Citation: 462 N.Y.S.2d 369,118 Misc.2d 868
• Parties: The PEOPLE of the State of New York v. Alfonso CASTRO, Defendant
• Court: New York Supreme Court

Page 369

462 N.Y.S.2d 369

118 Misc.2d 868

The PEOPLE of the State of New York v. Alfonso CASTRO, Defendant.

Supreme Court, Criminal Term Queens County, Part L-4.

April 18, 1983.

John J. Santucci, Dist. Atty., Queens County, for the People; Vincent F. Antonucci, Asst. Dist. Atty., of counsel.

Caesar D. Cirigliano, Legal Aid Society, Kew Gardens, for defendant; Lawrence H. Schoenbach, Kew Gardens, of counsel.

Eugene P. BAMBRICK, Justice.

Can a fourteen year old waive his constitutional rights without the consent of his parents or guardian?

This recurring question which has confronted courts throughout the nation has evaded permanent resolution and is at the heart of the defendant's motion to suppress certain statements attributed to him.

The defendant herein is charged with Robbery in the First Degree, two counts of Robbery in the Second Degree, Assault in the Second Degree, and Criminal Possession of a Weapon in the Fourth Degree. Upon motion of the defendant, the Court held a preliminary hearing (a) to determine whether the identification procedure was improper and whether such procedure tainted any subsequent identification which would warrant the suppression of any identification testimony (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149); and (b) to determine the admissibility of inculpatory statements made by the defendant (People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179).

The People called Police Officer Jeffrey Hoerte and the complainant Germania Taveras to testify at the hearing. From the credible testimony of the witnesses, the following are the findings of fact:

FINDINGS OF FACT

On April 30, 1982, at about 10:00 p.m., in the vicinity of Cypress and Cody Avenues, three men robbed the complainant of her pocketbook, during which time one of the men repeatedly hit her with a pipe. It appears that when she screamed, a man from a van came to her aid, and two of the perpetrators ran away. Whereupon the complainant picked up a beer bottle and broke it, and was able to detain the defendant, with the assistance of neighborhood people, until the police arrived at the scene. The complainant pointed out the defendant to Police Officer Hoerte as the one who hit her with a pipe, and he was placed under arrest. Less than two minutes after the arrest, Police Officer Hoerte requested the complainant to come over to the police radio car, where the defendant was sitting in the back, and asked whether he was the man who robbed her. She responded in the affirmative. The defendant was also identified by the complainant in Court at the hearing as the one who hit her with a pipe.

On the way to the 104th Precinct, Police Officer Hoerte ascertained that the defendant was fourteen years old. They arrived at the precinct at about 10:15 p.m., and after giving his name, address and age at the desk, the defendant was then taken to the Juvenile Detention Questioning Room. According to Police Officer Hoerte, he first attempted to phone the defendant's parents at 10:45 p.m., and since there was no answer, the defendant attempted to phone five minutes later, to no avail. At 11:00 p.m., the Officer attempted again to phone the defendant's parents with no success. No effort was made to reach any other relative. According to Officer Hoerte, an effort was made to contact the 83rd Precinct, wherein the defendant resides, and have them notify the defendant's parents by patrol car. However, the statements sought to be suppressed were already made by the time the 83rd Precinct reported back the results of their efforts.

At 11:00 p.m. the defendant was read the Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and according to Officer Hoerte, the defendant answered yes as to whether he understood each warning, including the last question: "Now that I have advised you of your rights, are you willing to answer questions without an attorney present?". (Transcript, February 3, 1983, p. 8.) From the Officer's testimony, it is unclear at what precise moment the defendant made his first statement. It appears that following the Miranda warnings, pedigree questions were asked. Shortly thereafter, as the Officer was filling out paperwork, the defendant made the following statement: "The only reason he had gone along in this venture was that the two other perpetrators who were with him had stated they would physically injure him * * * they would beat him up and cause injury to him if he didn't participate in the robbery". (Transcript, January 17, 1983, p. 12.) Although the Officer alleges that the first statement was not made in response to a question, the following is the transcription of the relevant testimony of the Officer, which more fully deals with that issue:

Q. And after you and he, he being my client, were unable to contact his parents, you then read him his rights and he made that statement?

A. That's correct.

The Court: Did he make the statement in response to a question or did he make it without?

The Witness: No, there was no direct question put to him.

Q. Well, when you say no direct question, my client was just sitting there and did he just blurt out "I did it with these two other kids because they made me do it because they said they would beat me up", or did you ask him what happened or what was involved?

A. I said to him--I said the two other guys that were with you, the exact words I don't remember, something to the effect that they're going to walk away from this and, you know, you're going to be left holding the bag and I said it would be to his benefit to let me know who these other guys were * * *.

(Transcript, January 17, 1983, p. 22.)

According to Officer Hoerte, approximately half an hour later, at 11:30 p.m., a second statement was made by the defendant, giving the names and addresses of the two other perpetrators.

It appears that attempts were made by the defendant to contact his parents, not only before 11:00 p.m. but subsequently on several other occasions, without success.

WADE ISSUE

The defendant moves to suppress the identification testimony alleging that the circumstances surrounding the "show-up" identification of the complaining witness were impermissibly suggestive, and that any subsequent identification would be tainted. This Court finds to the contrary, that the prompt show-up identification by the complainant shortly after the criminal event accorded with desirable police practice. (See People v. Logan, 25 N.Y.2d 184, 188, 303 N.Y.S.2d 353, 250 N.E.2d 454; People v. Huggler, 50 A.D.2d 471, 378 N.Y.S.2d 493; also see United States v. Sanchez, 2 Cir., 422 F.2d 1198, 1200; Bates v. United States, C.A.D.C., 405 F.2d 1104.) Furthermore, as stated in People v. Brnja, 70 A.D.2d 17, 419 N.Y.S.2d 591, affd. 50 N.Y.2d 366, 371, 429 N.Y.S.2d 173, 406 N.E.2d 1066), it has been held that not only is it not improper for the police to return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before, but that such procedure in certain instances "if anything promotes fairness, by assuring reliability". (Russell v. United States, C.A.D.C., 408 F.2d 1280, 1284, cert. den. 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245.) The Brnja Court explains:

"Although the Wade-Gilbert [v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178] rules apply to prearraignment viewing, speedy viewings on the scene benefit both law enforcement authorities and the defendant. If the accused is identified as the culprit, the witness' recollection will be as fresh and reliable as his capacity and the situation permit. If he is not identified, he may then be released with a minimum of delay (People v. Blake, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625; People v. Logan, 25 N.Y.2d 184, 194, 303 N.Y.S.2d 353, 360, 250 N.E.2d 454, 459, supra )."

(People v. Brnja, 70 A.D.2d 517, 419 N.Y.S.2d 591, supra.)

Accordingly, the Court finds that the show-up identification by the complainant Germania Taveras was properly made and should not be suppressed.

Even if the Court had found that the show-up identification should be suppressed, it would not suppress the complainant's in-court identification because she had an independent basis for such identification. At the time of the crime she had ample opportunity to view the defendant. (See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401; also see People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103.)

For all of the foregoing reasons, the Court finds that the motion to suppress the identification of defendant made by Germania Taveras is denied in all respects.

HUNTLEY ISSUE

The defendant contends that since Police Officer Hoerte failed to comply with the requirements of section 724 of the Family Court Act (hereinafter referred to as "FCA"), and CPL 140.20(6), both statements made by the defendant must be suppressed. According to the defendant, the courts have consistently held that section 724 of the FCA mandates strict compliance, and that failure to so comply causes any evidence obtained as a direct result thereof to be inadmissible per se. (Matter of Michelet P. (Gold), 70 A.D.2d 68, 419 N.Y.S.2d 704; Matter of Brian P.T., 58 A.D.2d 868, 396 N.Y.S.2d 873.)

In opposition to the motion to suppress the People argue: (a) Police Officer Hoerte complied with the requirements of section 724 of the FCA and CPL 140.20(6); and (b) the presence or absence of parents during the police questioning of a defendant under

sixteen years of age is only one of the factors to be considered in determining the voluntariness of a defendant's statement. (People v. Taylor, 16 N.Y.2d 1038, 265 N.Y.S.2d 913, 213 N.E.2d 321; People v. Hocking, 15 N.Y.2d 973, 259 N.Y.S.2d 859, 207 N.E.2d 529.)

JUVENILE WAIVER OF MIRANDA RIGHTS: "TOTALITY" VS. "PER SE" APPROACH

The issue raised by this motion can best be summarized by the words of Thomas...