People v. Harrington

• Decision Date: 11 April 1972
• Parties: The PEOPLE of the State of New York v. Michael HARRINGTON and Steven Hurlburt, Defendants. The PEOPLE of the State of New York v. Michael HARRINGTON, Defendant.
• Court: New York County Court

Page 789

332 N.Y.S.2d 789

70 Misc.2d 303

The PEOPLE of the State of New York v. Michael HARRINGTON and Steven Hurlburt, Defendants.

The PEOPLE of the State of New York v. Michael HARRINGTON, Defendant.

Allegany County Court.

April 11, 1972.

John T. D'Arcy, Allegany County Dist. Atty., Wellsville, for plaintiff.

Richard B. Tolins, Alfred, for Michael Harrington, defendant.

MEMORANDUM

WILLIAM W. SERRA, Judge.

The defendant has been indicted and charged with commission of two separate burglaries and larcenies. Before any charge or indictment in this county, he was held in the County Jail in Yates County on other charges. The District Attorney proposes to offer certain oral admissions made in the Yates County Jail as evidence against him in both indictments. A motion is made to suppress the admissions and also to suppress a gun alleged to have been stolen in Indictment No. B--1639--S above.

On the evidence adduced at the Suppression Hearing, the Court finds that after properly giving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and without in any way in violation of Section 60.45 CPL, as to conduct which would make the admissions involuntary, investigator Tobin of the New York State Police questioned the defendant, and the defendant orally admitted certain involvements in the acts charged in both indictments.

The motion papers allege that the defendant prior to interrogation by Investigator Tobin was threatened with physical violence by a named Deputy Sheriff of Yates County and that under the duress of the Deputy Sheriff, he signed full confessions. The defendant testified as to these offenses against him, and that in fear of his safety, he signed the confessions. He also testified that the Deputy Sheriff, in continuation of his intimidation, reminded him of the threat immediately before being questioned by Investigator Tobin and out of the presence of Investigator Tobin. The People did not produce the Deputy at the Suppression Hearing. The Court also finds that the defendant was held in custody in the Yates County Jail without counsel for a week between the two interrogations.

The burden of proof as to the admissibility of confessions and admissions in a criminal case is on the People to show their admissibility beyond a reasonable doubt. People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179. In view of completely uncontradicted testimony of the defendant, after notice in the moving papers that an alleged threat by a named police officer would be proved, the failure to produce such officer by the People will be viewed in the light that the version of the missing witness would not controvert such proof. Noce v. Kaufman, 2 N.Y.2d 347, 161 N.Y.S.2d 1, 141 N.E.2d 529; People v. Moore, 17 A.D.2d 57, 230 N.Y.S.2d 880; People v. Valerius, 36 A.D.2d 671, 318 N.Y.S.2d 883. The Court therefore finds that the threat of physical violence to the defendant was in fact made and renewed and that the defendant was intimidated by it. The mere advice, however carefully given by the State Police Investigator pursuant to Miranda, cannot be deemed to dispel the fears of an eighteen year old boy under such circumstances. The People have failed to prove beyond a reasonable doubt that the admissions were freely and voluntarily given and particularly have failed to show that the taint of the threats testified to and uncontroverted has been overcome by the Miranda warnings alone on the facts produced in evidence. In such case, 'a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.' Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724, Supra.

The suppression motion as to the use of the gun in evidence presents substantially different problems. The sole evidence given in relation to the gun was testimony by Investigator Tobin that he was informed by the Steuben County Sheriff's Office that alleged stolen properties, including the gun, were turned over to the Sheriff's Department by the father of the co-defendant, Steven Hurlburt, which gun was then given to Mr. Tobin by the Steuben County Sheriff's Department. The question then is as to the sufficiency of...