People v. Glover

• Decision Date: 05 July 1977
• Citation: 58 A.D.2d 814,396 N.Y.S.2d 268
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., Appellant, v. Kenneth GLOVER, Respondent.

Page 268

396 N.Y.S.2d 268

58 A.D.2d 814

The PEOPLE, etc., Appellant, v. Kenneth GLOVER, Respondent.

Supreme Court, Appellate Division, Second Department.

July 5, 1977.

Eugene Gold, Dist. Atty., Brooklyn (David Harrigan, Brooklyn, of counsel), for appellant.

John B. Graziadei, Brooklyn, for respondent.

Before GULOTTA, P. J., and MARTUSCELLO and LATHAM, JJ.

MEMORANDUM BY THE COURT.

Appeal, as limited by the People's brief, from so much of an order of the Supreme Court, Kings County, dated September 30, 1976, as, after a Huntley hearing, granted the branch of the defendant's motion which sought to suppress a statement made to an Assistant District Attorney on August 27, 1975.

Order reversed insofar as appealed from, on the law, and the said branch of the motion denied. The facts are not in dispute.

Shortly before the noon hour on August 27, 1975, the defendant-respondent was taken to the 90th Precinct in Brooklyn, where he was interrogated by Detective Brocato concerning his possible involvement in an armed robbery which had occurred on August 20, 1975. The defendant remained in the 90th Precinct for about an hour and a half, during which time he was neither handcuffed nor threatened. At no time did he express a desire to leave. The defendant was not, however, apprised of his rights, in clear violation of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The People concede that this renders the inculpatory statements made to Detective Brocato inadmissible.

Following his interrogation at the 90th Precinct, Detective Martin transported the defendant to the 67th Precinct, where the latter attempted, without success, to identify an accomplice from mugshots. Later, at or about 2:00 P.M., he was transported to the 77th Precinct, where Detective Martin placed the defendant in an office and called Assistant District Attorney Marshak. The latter arrived at or about 5:00 P.M. and informed the defendant of his constitutional rights. Glover thereupon waived those rights, agreed to answer his questions, and gave the assistant an incriminating statement. During the period between 2:00 P.M. and 5:00 P.M., the defendant was not interrogated or physically restrained in any way. He was not, however, free to leave.

On these facts, adduced without contradiction at the Huntley hearing, Criminal Term suppressed the statement on the ground, inter alia, that the defendant had been subjected to continuous custodial interrogation beginning at the 90th Precinct; that, since the defendant had not been apprised of his rights at the outset, the subsequent Miranda warnings were insufficient to overcome the effect of the continuous interrogation; and that, under the authority of Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and People v. Chapple, 38 N.Y.2d 112, 378 N.Y.S.2d 682, 341 N.E.2d 243, the defendant's purported waiver was not knowingly and intelligently made. The People appeal pursuant to CPL 450.50 (subd. 1).

In our opinion, the facts in Westover and Chapple are clearly distinguishable from those at bar. Indeed, the Justice presiding at Criminal Term appears to have misapprehended the significance of the statement in Chapple that "(w) arnings, to be effective under the combined holdings in Miranda and Westover, must precede the subjection of a defendant to questioning. Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v. Chapple, supra, 38 N.Y.2d p. 115, 378 N.Y.S.2d p. 685, 341 N.E.2d p. 245 (emphasis supplied)). In a similar vein, the Supreme Court of the United States held in Westover that where continuous questioning occurs between two statements, and where the second statement (given with the benefit of Miranda warnings) occurs without the defendant's being removed both in time and place from the surroundings of the first (obtained without the benefit of those warnings), the second statement may not be admitted (Westover v. United States, supra, 384 U.S. pp. 494-497, 86 S.Ct. 1602).

In the case at bar, the two interrogations were conducted during the same day. More importantly, however, they were conducted at different locations, by different interrogators, and were separated by a time span of approximately three hours. During that hiatus the defendant was left completely alone in an unlocked office, and was therefore placed in a position where he could reflect fully and freely both on his situation and how he wished to proceed. He was not spoken to, threatened or handcuffed. Moreover, he never complained or expressed any desire to leave. Under these circumstances, the...