People v. Damiano
| Citation | 209 A.D.2d 873,619 N.Y.S.2d 214 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jeffrey DAMIANO, Appellant. |
| Decision Date | 23 November 1994 |
| Court | New York Supreme Court Appellate Division |
Paul J. Connolly, Albany, for appellant.
Michael Kavanagh, Dist. Atty. (Joan Gudesblatt Lamb, of counsel), Kingston, for respondent.
Before MIKOLL, J.P., and CREW, CASEY and YESAWICH, JJ.
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered January 12, 1993, upon a verdict convicting defendant of the crimes of murder in the second degree, reckless endangerment in the first degree and reckless endangerment in the second degree.
On the evening of April 21, 1991 defendant, Eric Birdsall and Jamie Rullan drove in Rullan's car to the Freetown Road overpass in the Town of New Paltz, Ulster County, where they threw rocks from the overpass onto cars traveling on the Thruway below. They then drove to the South Ohioville overpass where they again threw rocks at cars traveling on the Thruway. After throwing "tennis ball" size rocks on the traffic below, defendant and Birdsall placed a 52-pound boulder on a guardrail and pushed it off onto the oncoming traffic. The boulder hit a car driven by Karen Zentner, which caused her vehicle to collide with a guardrail resulting in her death. Defendant was indicted, inter alia, for the crimes of murder in the second degree and two counts of reckless endangerment in the first degree; he was convicted, after a jury trial, of murder in the second degree, reckless endangerment in the first degree and the lesser included offense of reckless endangerment in the second degree. Defendant was sentenced to terms of imprisonment of 20 years to life, 2 1/3 to 7 years and one year, respectively.
On this appeal defendant contends, inter alia, that County Court erred in failing to suppress his initial written and oral statements made to the State Police. We disagree. The record reflects that some nine months after Zentner's death, the State Police received information that defendant may have been involved in the incident. As a result, investigators went to defendant's house and advised him that they wished him to accompany them to the State Police barracks to see if he could make an identification from a photographic array regarding an assault in which he was the complainant. The record is clear that defendant voluntarily followed the investigators to the barracks for that purpose. Once at the barracks, however, defendant was given his Miranda warnings and questioned concerning the rock-throwing incidents. Contrary to defendant's assertion, he was not compelled or coerced to forego the inviolability of his home and the "noncoercive subterfuge" employed by the police did not violate his constitutional rights (see, People v. Richardson, 137 A.D.2d 105, 108, 528 N.Y.S.2d 431).
We reach the same conclusion with regard to the oral statements made by defendant in a police car en route to his arraignment. After giving his written statement, defendant was asked if he would go with the investigators to the crime scene. He agreed upon the condition that he be permitted to speak to his mother. Following a telephone conversation with his mother, defendant changed his mind and refused to speak further to the investigators. Additionally, an attorney telephoned the barracks and advised that he was representing defendant. Thereafter, a uniformed Trooper, Joseph Santiago, who was not involved in the investigative phase of the case and who had no prior contact with defendant, was assigned to transport defendant to the Town of Plattekill Justice Court for arraignment. The normal route taken to the Town of Plattekill Justice Court necessitated that the troop car traverse the Thruway at the South Ohioville overpass. As the vehicle approached that overpass, defendant let out a discernible...
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People v. Damiano
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