People v. Hopkins

• Decision Date: 25 February 1982
• Parties: The PEOPLE of the State of New York, Respondent, v. John William HOPKINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 574

448 N.Y.S.2d 574

86 A.D.2d 937

The PEOPLE of the State of New York, Respondent, v. John William HOPKINS, Appellant.

Supreme Court, Appellate Division Third Department.

Feb. 25, 1982.

George Abdella, Gloversville, for appellant.

William H. Gritsavage, Fulton County Dist. Atty., Johnstown (Valerie Friedlander, New York City, of counsel), for respondent.

Before SWEENEY, J. P., and MAIN, CASEY, MIKOLL and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Fulton County, rendered November 24, 1980, upon a verdict convicting defendant of the crimes of murder in the second degree, felony murder and kidnapping in the first degree.

On August 15, 1979, at 6:00 P.M., the State Police came to defendant's home during the course of their investigation of the kidnapping and stabbing of one Celene Edwards. Defendant matched the description given by Edwards and owned the automobile involved. He accompanied the police to the Fonda barracks where he denied knowledge of the Edwards crimes, and later signed consents to have his car and house searched and to be photographed. He also agreed to take a polygraph examination. Celene Edwards identified defendant as her assailant in a photo array, and, at 2:15 A.M., he was arrested at the Loudonville State Police Barracks for the attempted murder, kidnapping and sodomy of Ms. Edwards. Defendant was returned to Fonda around 5:45 A.M. At approximately 8:00 A.M., he confessed for the first time to the murder of Cecelia Genatiempo in 1976. Thereafter, he also confessed to the murder of Sherrie Ann Carville in 1978. During the questioning, defendant helped to prepare a written statement in which he detailed his participation in the Genatiempo murder. Defendant also drew a diagram of the abduction scene and of the knife he used. He was arraigned at 3:30 P.M. That night, at about 10:00 P.M., he again confessed that he had committed these crimes to a prison guard at Montgomery County Jail.

A jury convicted defendant of two counts of murder in the second degree, kidnapping in the first degree, and rape in the first degree, in the Genatiempo case. On this appeal, defendant contends that some 20 errors made by the police and the trial court mandate the reversal of his conviction.

Initially, defendant contends that his statements and the evidence obtained in the search of his home and vehicle should have been suppressed as the products of an illegal detention (see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; People v. Misuis, 47 N.Y.2d 979, 419 N.Y.S.2d 961, 393 N.E.2d 1034). He contends that police deception induced him to leave his home and go to the Fonda barracks; that Miranda warnings were never given to him; and that he was never advised of the nature of the investigation. In determining whether defendant was in custody, the correct test is what a reasonable person, innocent of any crime, would have thought under the circumstances (People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172; People v. Byers, 71 A.D.2d 77, 80, 421 N.Y.S.2d 462). Where, as here, different inferences can be drawn from the facts, the determination is for the trier of facts, and should be upheld unless unsupported as a matter of law (see People v McNeeley, 77 A.D.2d 205, 208-209, 433 N.Y.S.2d 293, and cases cited therein). In our view, the evidence is sufficient to support the trial court's finding that defendant voluntarily went to, and remained at the police station. Neither his statements nor the consent search were invalidated by an illegal detention.

Nor do we find persuasive defendant's further contention that his statements were involuntary. The People have the burden of showing that defendant made a voluntary, knowing and intelligent waiver of his Fifth Amendment privilege against self-incrimination (People v. Whitehurst, 25 N.Y.2d 389, 306 N.Y.S.2d 673, 254 N.E.2d 905). Such waiver must be proven by the People beyond a reasonable doubt (People v. Anderson, 42 N.Y.2d 35, 38-39, 396 N.Y.S.2d 625, 364 N.E.2d 1318; People v. Valerius, 31 N.Y.2d 51, 55, 334 N.Y.S.2d 871, 286 N.E.2d 254). Credibility is an issue of fact, and, in the absence of extraordinary circumstances, the trial court's determination thereof should not be disturbed (see People v. Wright, 71 A.D.2d 585, 586, 418 N.Y.S.2d 586). The court painstakingly scrutinized and weighed all of the evidence and found "the parts fit into the whole mosaic of events". Defendant is not an illiterate or unknowing person; rather, he had majored in criminology at college and passed an entrance examination for the State Police. He was found to be alert, intelligent, aggressive, and of strong mind and will, unlikely to succumb to suggestions or persuasion. On this record, we cannot say that the court erred in finding that the People had sustained their heavy burden of proof.

The delay in arraignment on the Edwards charges did not render defendant's statement involuntary. Delay in arraignment is but one factor to be considered on the issue of voluntariness and does not, of itself, mandate suppression of the confession (People v. Holland, 48 N.Y.2d 861, 424 N.Y.S.2d 351, 400 N.E.2d 293; People v. Dairsaw, 46 N.Y.2d 739, 413 N.Y.S.2d 640, 386 N.E.2d 249). In our view, the delay herein did not render defendant's statements involuntary (see People v. Tarsia, 50 N.Y.2d 1, 12, 427 N.Y.S.2d 944, 405 N.E.2d 188).

Moreover, we do not find that the signing of the consent to search, the arrest, and the circumstances of the arraignment on the Edwards charge, constituted sufficient judicial activity to trigger defendant's indelible right to counsel, thereby invalidating any and all statements made in the absence of counsel (cf. People v. Pawlyshyn, 77 A.D.2d 687, 429 N.Y.S.2d 805). ^* Since counsel had not yet been retained on the Edwards charge, questioning on the unrelated Genatiempo crimes was permissible (People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371; People v. Kazmarick, 52 N.Y.2d 322, 438 N.Y.S.2d 247, 420 N.E.2d 45; People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709). The impending arraignment, at which an attorney was standing by for purposes of assignment, was scheduled for after 9:00 A.M., when the Johnstown City Court convened. Defendant had initially confessed at least an hour earlier. While the intervening revelations concerning the Carville and Genatiempo investigations may have sidetracked the Edwards arraignment, we cannot say that the delay was improper or in any way designed to avoid defendant's right to counsel (cf. People v. Lockwood, 44 N.Y.2d 769, 406 N.Y.S.2d 37, 377 N.E.2d 481, revg. on dissenting opn. below 55 A.D.2d 17, 20-25, 389 N.Y.S.2d 583).

We next consider defendant's contention that his second confession to a correction officer at the jail should have been suppressed because it was made in the absence of counsel. Officer Levandowsky was assigned to maintain a suicide watch over defendant. After observing defendant pacing in his cell for 10 minutes, Levandowsky inquired, "How is everything going?" Whereupon, according to the officer, defendant

told me he was glad he was caught. He said if he wasn't caught he probably would have committed more crimes, and he mentioned about three killings he was involved in, and I said, The Carville girl and Genatiempo", and he said he just wanted to get medical help.

Defendant then continued his rambling statement, lasting approximately one hour, during which he "kept repeating himself and just repeating all he had done." At the suppression hearing, the Trial Judge found beyond a reasonable doubt that the statement was voluntarily and spontaneously made, and was not the product of any police interrogation. In our view, the record amply supports this finding. Our inquiry is whether defendant's statement was "triggered by police conduct which should reasonably have been anticipated to evoke a...