People v. Ferguson

• Decision Date: 10 March 1977
• Citation: 395 N.Y.S.2d 330,90 Misc.2d 467
• Parties: The PEOPLE of the State of New York v. Joseph FERGUSON, Defendant.
• Court: New York Supreme Court

Page 330

395 N.Y.S.2d 330

90 Misc.2d 467

The PEOPLE of the State of New York v. Joseph FERGUSON, Defendant.

Supreme Court, Trial Term, New York County, Part 71.

March 10, 1977.

Robert M. Morgenthau by Warren Murray, New York City, for the People.

William Gallagher by Helen Sadow, New York City, for defendant.

JOHN CARRO, Justice:

This is a Huntley hearing brought on by the defendant to suppress statements made to his parole officer at Rikers Island.

The defendant was arrested for robbery, was arraigned and had counsel assigned on May 12, 1976. He was indicted on May 17, 1976. On June 18, 1976, he was visited at the Rikers Island House of Detention for Men by his parole officer. He was questioned without benefit of the Miranda warnings and without the presence of counsel and made statements.

It is clear at this stage in the development of our law that a custodial interrogation of an indicted defendant by an agent of the state, without warnings as to that defendant's Fifth Amendment right against self incrimination and Sixth Amendment right to counsel, and absent his previously assigned counsel, is not to be permitted, and that the fruits of such interrogation must be suppressed.

Indeed, we have gone far beyond this statement as regards a defendant's right to counsel in self incrimination situations. Our State preceded and surpassed the Supreme Court of the United States in its protection of the right to counsel, not only in reliance upon the Fifth and Sixth Amendments, through the Fourteenth, but also on State Constitutional grounds.

See: People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825, People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445, People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103, People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628, People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852.

In People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537, the Court held (p. 329, 292 N.Y.S.2d p. 666, 239 N.E.2d p. 539),

"Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel".

This doctrine was strongly reaffirmed in People v. Hobson, 39 N.Y.2d 479, 481, 384 N.Y.S.2d 419, 420, 348 N.E.2d 894, 896,

"Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer . . . Any statements elicited by an agent of the State (emphasis added), however subtly, after a purported "waiver" obtained without the presence or assistance of counsel, are inadmissible."

See also: People v. Ramos, 40 N.Y.2d 610, 389 N.Y.S.2d 299, 357 N.E.2d 955, People v. Townes, 41 N.Y.2d 97, 390 N.Y.S.2d 893, 359 N.E.2d 402, People v. Roberson, 41 N.Y.2d 106, 390 N.Y.S.2d 900, 359 N.E.2d 408.

This case is well within the ambit of the above authorities, with the exception of the relationship of the parties. The question here is, under these facts, does the status of the defendant as a parolee and of his interrogator as his parole officer diminish his constitutional rights in a new prosecution, so as to permit the admission into evidence of a statement taken in the absence of counsel and without the "Miranda " warnings?

People v. Ronald W. (1969), 24 N.Y.2d 732, 735, 302 N.Y.S.2d 260, 262, 249 N.E.2d 882, 884, held that a probation officer "is not a 'law enforcement' officer within the spirit or meaning of Miranda v. Arizona (384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694)" and that the probation officers were not required to give the defendant the "Miranda " warnings.

However, Ronald W. dealt with a voluntary, non-custodial statement, and, most importantly for our purposes, with a probation revocation proceeding.

That case therefore is easily distinguishable from the one at bar, requiring this court to consider anew the question of the parolee's interrogation by his parole officer in a fresh prosecution. For this purpose, any distinctions between the parole and the probation status may be overlooked.

Unfortunately, this court has found no authority in this jurisdiction dealing with the precise question to be considered here. Indeed, authority is sparse throughout the country.

Almost every case on all fours with our fact pattern held that the parole status did not diminish the defendant's right to receive the constitutional warnings. Most did not discuss the right to have counsel present, as in People v. Arthur, supra, and People v. Hobson,supra. This right, in the opinion of this Court, once it attaches, is even superior to the right to the constitutional warnings.

These decisions distinguish between a probation or parole revocation proceeding and a new prosecution. In U. S. v. Deaton (5th Cir. 1972), 468 F.2d 541, 544, cert. den., 410 U.S. 934, 93 S.Ct. 1386, 35 L.Ed.2d 597, the court stated:

"Deaton's parole officer testified, over objection, to statements made to him by Deaton, tending to incriminate Deaton on the harboring and concealing charge, uttered in response to direct interrogation by the parole officer when Deaton was in custody, and without the officer having given Deaton the warnings required by Miranda. We have considerable doubt as to the propriety of even calling the parole officer as a witness for such a purpose. But, pretermitting that, we have no doubt that the testimony was inadmissible unless the officer gave prior Miranda warnings. A parolee is under heavy psychological pressure to answer inquiries made by his parole officer, perhaps even greater than when the interrogation is by an enforcement officer. The use of admissions extracted in this manner from the parolee, in his trial on charges based on the criminal conduct inquired about, raises an issue significantly different from that in United States v. Johnson, 455 F.2d 932 (5th Cir. 1972). There we held that because a parole revocation hearing was not an adversary or a criminal proceeding but rather was an administrative hearing wherein the exclusionary rule has no application, prior Miranda warnings are not required as a condition to the admission in evidence at the revocation hearing of statements made by the parolee to the parole officer."

See also: State v. Gallagher (1974), 38 Ohio St.2d 291, 313 N.E.2d 396, cert. den. 425 U.S. 257, 96 S.Ct. 1438, 47 L.Ed.2d 722, which relies heavily on Deaton, supra, and reached the same result.

The court in State v. Lekas (1968), 201 Kan. 579, 442 P.2d 11, 15; was greatly concerned with the distinction between parole revocation and new prosecution,

"It should be emphasized the issue here presented is not whether the appellant's parole can be revoked after the appellant confesses to the parole officer concerning a new crime, without first having been informed of his constitutional rights . . . Here the incriminating statements admitted in evidence were used to convict the appellant for a new offense. This is the issue confronting the Court."

"We hold the Miranda decision places a duty upon the officers of the Kansas State Board of Probation and Parole, when they are investigating the commission of a fresh or new felony by a parolee, to comply with the mandate in Miranda, if the incriminating statements they elicit from a parolee are to be admissible as evidence in the prosecution of the new offense."

In a 1971 Florida case, Nettles v. State, Fla.App., 248 So.2d 259, the Court, relying primarily on People v. Ronald W., supra, held that the defendant waived his right to his constitutional Miranda warnings by his Probation Officer, when he accepted probation.

This Court agrees with the dissent,

"The majority have overlooked the fact that not one of the cited cases supports the opinion. People v. Ronald W. . . . are cases in which the question was whether an admission to a probation supervisor might be introduced in a proceeding for revocation of probation without proof of compliance with Miranda. I agree that it can be . . . . But whether that same admission can be admitted at the defendant's trial for the subsequent offense the question now before us is a different matter."

"I think that the proper rule is that in a proceeding for revocation of probation or parole it need not be shown that Miranda was followed, but that in a prosecution for a separate offense it must be shown either that the interrogation was not in a custodial setting or that the accused knew the rights he was waiving."

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