People v. Graham

• Citation: 447 N.Y.S.2d 918,432 N.E.2d 790,55 N.Y.2d 144
• Parties: , 432 N.E.2d 790 The PEOPLE of the State of New York, Appellant, v. Imogene GRAHAM, Respondent.
• Decision Date: 18 February 1982
• Court: New York Court of Appeals

Page 918

447 N.Y.S.2d 918

55 N.Y.2d 144, 432 N.E.2d 790

The PEOPLE of the State of New York, Appellant, v. Imogene GRAHAM, Respondent.

Court of Appeals of New York.

Feb. 18, 1982.

Robert M. Morgenthau, Dist. Atty., New York City (Mark Dwyer, Robert M. Pitler and Bruce Allen, New York City, of counsel), for appellant.

William E. Hellerstein, New York City, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

We are called upon to decide whether the court of first instance in this case was free to refuse defendant's request, made pursuant to CPL 60.45 and 710.70, that it submit the voluntariness of defendant's incriminating statement to the jury when the attack on it was based solely on proof in support of a claim that the police officer to whom it was made failed to advise the defendant of her constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. ¹

The defendant, Imogene Graham, was arrested in a tavern on Manhattan's upper West Side by a police officer when a purse containing packets of heroin was found lying on the table at which she had been sitting. As pertinent here, the officer was to testify at trial that he had seen her abandon the purse; but, Ms. Graham, who previously had never been convicted of a crime, took the stand to swear that she had been unaware of the contents of the purpose, that it belonged to another young woman, whose name, Teresa Black, was inscribed on the purse, and that it was Ms. Black who had left it on the table.

The officer also testified that, as he was taking Ms. Graham to the station house in his police car, he asked her, 'Who are you holding the stuff for?' and that she answered, 'No, no, he'll kill me. He'll kill me.' Although the officer stated that he had informed Ms. Graham of her other rights before he and she engaged in this colloquy, he also described how he had failed to advise her that she had a right to counsel before she answered any questions, the omission having occurred, as he explained it, because, having 'informed her that the court would provide an attorney for her, I assumed she would know what that means'. For her part, defendant insisted that she received no warnings at all before the questioning in the police car and that the officer's version of the statement she made was inaccurate.

On this record, at the close of defendant's case, her counsel requested the court to charge the jury on the voluntariness of the statement. He also requested permission to argue the issue during summation. But, although the prosecutor agreed that the Criminal Procedure Law required such an instruction, the Trial Judge, who, in response to a pretrial motion to suppress the statement, earlier had ruled that defendant had knowingly waived her privilege against self incrimination, rejected both applications.

The procedural predicate for defendant's requests is to be found in CPL 60.45 and 710.70. Together, these govern the admissibility of defendants' confessions, admissions and other statements. Specifically, CPL 60.45 (subd. 2, par. cl. says in so many words that a statement is involuntary when it is obtained from a defendant 'by a public servant engaged in law enforcement activity * * * in violation of such rights as the defendant may derive from the constitution of this state or of the United States.' And, in interlocking fashion, CPL 710.70 (subd. 3) not only allows a defendant, notwithstanding an adverse pretrial ruling, to attempt at trial to establish that the statement 'was involuntarily made within the meaning of section 60.45', but goes on to provide that 'the case of a jury trial, the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made' (emphasis added). ²

In refusing to follow what he acknowledged was the 'very literal language of the statutethe Trial Judge, who had been executive director of the State commission which drafted the Criminal Procedure Law, essentially took the position that the sufficiency of compliance with the dictates of Miranda v. Arizona is a question of law, that therefore 'the legislature never could have intended' that such an issue be litigated before a jury, that the statutory scheme contemplated only 'traditional involuntariness in the sense of duress', and that, in indicating otherwise, CPL 710.70 represents a 'statutory defect', 'a statutory error of almost a typographical nature'.

The voluntariness issue having thus been kept from the jury, which thereafter found the defendant guilty of criminal possession of a controlled substance in the second degree (Penal Law, § 220.18), this was to be the overarching issue on which the judgment entered upon the conviction was reversed and a new trial granted by the Appellate Division. Other than to note the police officer's concession with regard to the shortfall in his advice to the defendant on her right to counsel, the court's memorandum for reversal centered on its holding that the statutory language was controlling. On the People's appeal to us, here by leave of a Judge of this court (CPL 460.20), we now find the Appellate Division's determination was correct. Our reasons follow.

At the outset, we observe that the enactment of CPL 60.45 on its face would appear to evince a legislative intent to expand the concept of 'involuntary statement' beyond its traditional scope. Its predecessor, the old Code of Criminal Procedure ( § 395), excluded from evidence only confessions 'made under the influence of fear produced by threats, or * * * made upon a stipulation of the district attorney, that shall not be prosecuted therefor'. Assuming the Legislature had chosen to limit itself to these instances of 'actual' involuntariness, it need only have enacted paragraph (a) and clause (i) of paragraph (b) of subdivision 2 of the present statute, which cover both the coercive and promissory elements of the code section it replaced. By enacting clause (ii) of paragraph (b), by which statements obtained 'in violation of such rights as the defendant may derive from the constitution' were added, the Legislature brought the concept of involuntarily made statements beyond its traditional confines. ³

Moreover, that the expanded boundary included the kind of involuntariness within which the claim made by the present defendant falls is not without historical support. When CPL 60.45 was enacted in its present form in 1970, it followed two hardly unrelated legal events. One, in 1964, was the United States Supreme Court's decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, in response to which New York revolutionized its procedure for determining the voluntariness of a defendant's confession (People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179). The second, in 1966, was the emphasis the then newly prescribed Miranda warnings placed on deterrence of self incrimination which flows from a defendant's ignorance of his constitutional rights (Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 1629-1630, 16 L.Ed.2d 694, supra).

Significantly, even the Trial Judge in the present case, when he authored the practice commentary which in 1970 accompanied the newly enacted CPL 60.45, opined that the statute had been rewritten to comprehensively blanket 'not only all forms of actual voluntariness (e.g., physical force) but also all forms of what the United States Supreme Court has stamped involuntariness in a legal or constructive sense (e.g., failure to give Miranda warnings)' (Denzer, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A CPL 60.45, p. 259). That this was no aberrational comment is certified by recourse to the 1968 draft of the proposed section. Its definition of involuntariness, instinct with sensitivity to Miranda, incorporated reference to statements obtained 'without first effectively advising the defendant of and according him such rights as he may derive from the constitution of this state or of the United States with respect to the making of a statement' (Seventh Interim Report of N.Y. Temporary Comm. on Revision of Penal Law and Criminal Code p. 51). In the end, of course, the Legislature chose not merely the more abbreviated but also the more comprehensive language of the present CPL 60.45 (subd. 2, par. cl. [ii]).

Nor is CPL 710.70 divorced from this history. It codified this court's Huntley holding, by which, in the wake of Jackson v. Denno (supra), New York adopted the so-called 'Massachusetts procedure' for determining the voluntariness of a defendant's confession. Under this procedure, the Trial Judge makes a full determination of voluntariness and submits the confession to the jury only if the statement is found voluntary; in that event, the jury is instructed not to give any weight to the statement unless it finds it voluntary (Jackson v. Denno, supra, 378 U.S. pp. 378-379, 84 S.Ct. pp. 1781-1782). ⁴ More to the point, CPL 710.70 's70's reference to CPL 60.45 is without limitation or exception. It therefore would distort what it plainly says, were we to selectively apply it only to CPL 60.45 (subd. 2, pars. cl. Put another way, as written, the statutes mandate that any issues of voluntariness set out in 60.45 may go to the jury.

Thus, even if the statutory history we have recounted were nonexistent, the clarity and unambiguity of the language of both CPL 60.45 and 710.70 would have made it inappropriate to delve into what at times is an ill-defined legislative intent (Department of Welfare of City of N. Y. v. Siebel, 6 N.Y.2d 536, 543, 190 N.Y.S.2d 683, 161 N.E.2d 1; McKinney's Cons. Laws of N.Y., Book 1, Statutes, §§ 71, 76; but see New York State Bankers Assn. v. Albright, 38 N.Y.2d 430, 381 N.Y.S.2d 17, 343 N.E.2d 735). This is all the more so because 'there is no necessary correlation between what the draftsman of the text of a bill understands it to mean and what members of the...