People v. Jenkins

• Decision Date: 04 March 1982
• Parties: The PEOPLE of the State of New York, Respondent, v. Walter JENKINS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 490

447 N.Y.S.2d 490

85 A.D.2d 265

The PEOPLE of the State of New York, Respondent, v. Walter JENKINS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 4, 1982.

H. B. Wilson, III, New York City, for respondent.

H. B. Comet, Mineola, for defendant-appellant.

Before KUPFERMAN, J. P., and SULLIVAN, SILVERMAN, BLOOM and FEIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, rendered on September 4, 1979, convicting defendant of robbery in the first and second degrees, and assault in the second degree (Ind. No. 2129/78), reversed, on the law and the facts, the indictment dismissed, and the matter remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of a copy of this Court's order upon the respondent, with leave during this 30 day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required; and judgment, of said court also rendered on September 4, 1979, convicting defendant of robbery in the second degree (Ind. No. 2130/78), reversed, on the law and the facts, counts 1, 3, 5 and 7 of the indictment dismissed without prejudice, and the case remanded for a new trial on counts 2, 4, 6 and 8.

All concur except FEIN, J., who concurs in a memorandum in which SULLIVAN, J., concurs; SILVERMAN, J., who concurs in a separate memorandum; and KUPFERMAN, J. P., and BLOOM, J., who dissent in a memorandum by BLOOM, J., all as follows:

FEIN, Justice (concurring).

On October 8, 1978 at approximately 11 a.m. defendant was arrested by Officer Blue and another police officer, after a high-speed chase of a reportedly stolen automobile in which defendant was a passenger. When defendant emerged from the vehicle he was holding a rolled up leather jacket. The pockets of the jacket contained an air pistol, four watches, a gold medallion on a chain, about $60.00 worth of food coupons and $364.15 in cash. On the back seat of the car was a portable t.v. set.

About 25 minutes after arrival at the 32nd precinct in Manhattan, at "approximately 11:30", Officer Blue delivered Miranda warnings. In response to the first Miranda warning, defendant stated "Yes, I understand." In response to the remaining warnings, defendant responded "not going to say anything." Despite this response, Officer Blue asked the defendant questions concerning the source of the automobile, the cash and the food stamps. The officer testified that with reference to the car, "said he bought the car from a friend." The defendant made no response with respect to the cash and food stamps. Blue could not recall how long he questioned defendant. He thought the questioning took from approximately 11:30 A.M. to 12 noon.

At approximately 2 P.M. Detective Rosenthal of the Bronx Robbery Squad arrived at the 32nd precinct. The record is not clear whether Rosenthal was told that Miranda warnings had previously been administered to the defendant. Rosenthal testified that he administered Miranda warnings shortly after his arrival, in response to which defendant stated: "I don't want to talk to you."

Shortly thereafter, defendant and Rowe, the driver of the stolen vehicle, were taken to the Bronx Robbery Squad in the 48th Precinct in the Bronx, together with the property recovered from the defendant, which appeared to correspond to items stolen in the Bronx that morning. Rosenthal did not recall whether there was any conversation with the defendant en route to the Bronx. Upon arrival at the Bronx 48th Precinct at approximately 4:30 P.M., defendant and Rowe were each handcuffed to chairs in separate rooms. Sometime between 4:30 and 5 P.M. Detective Daino started to question the defendant. He said he was unaware of whether defendant had been questioned by other police officers. He testified as follows:

Question: Did you have occasion to assist Det. Rosenthal in the questioning of any subject in custody of the Bronx Robbery Squad?

Answer: Yes.

Question: On this day?

Answer: Yes.

Question: Who, if anyone, did you have a conversation with?

Answer: With Mr. Jenkins.

* * *

* * *

Question: What if anything did you say to Mr. Jenkins and what if anything did Mr. Jenkins say to you?

Answer: This is the Bronx Robbery Squad?

Question: Yes.

Answer: I gave Mr. Jenkins his rights under the Miranda warning and after giving him his rights I questioned him as to the two robberies that happened on that same day.

Question: Okay, with regards to the rights under the Miranda that you characterize what exactly did you say to Mr. Jenkins and what did he say to you?

Answer: I told him he had the right to remain silent and that he didn't have to speak unless he wanted to and I asked him if he understood and he said he did. That if he did speak anything he said would be held against him in a court of law and I asked him if he understood and he said he did. I told him he had a right to have an attorney at that time or any time during our conversation and did he understand and he said he did. I said if you can't afford an attorney one will be provided by the court and I asked him if he understood that.

Question: What did he say?

Answer: He did.

Manifestly, there was no waiver, either express or by implication, up to this point. Nor was there a request for a waiver. Nevertheless, the inquiry continued. It was made abundantly clear that the questioning would continue until defendant agreed to talk.

Question: Okay, what, if anything, did you say to the Defendant Jenkins after that and what if anything did the Defendant Jenkins say to you after that?

Answer: I told him that there were two robberies in two Bodegas that day and that certain property had been taken and that he was caught approximately at the time twenty minutes after those robberies down in the 32 Pct. with the property that is described on the UF 61 and that he matched the description and he said at that time he told me, "I'll talk to you, but I want you to understand one thing I didn't rob any legitimate bodega. These bodegas are not legitimate they sell smoke or they sell numbers.

Question: Did the Defendant say anything else to you?

Answer: He admitted to me that he did rob the store and that Mr. Rowe was with him, but he said Mr. Rowe didn't have any knowledge of what was going on. At that time I stopped and I notified Det. Rosenthal that Mr. Jenkins was talking and Mr. Rosenthal, Det. Rosenthal took over the questioning from that point.

Detective Daino testified that he took no notes of the questions he asked defendant or the answers defendant gave, and that the questioning took approximately 5 or 10 minutes. He was not present during the questioning of defendant by Detective Rosenthal.

The pattern of repeated inquiry was made evident.

Rosenthal testified that at approximately 5 P.M. he questioned the defendant on the basis of Daino's report without administering Miranda warnings to the defendant. Rosenthal testified, in pertinent part, as follows:

Question: What did you say, your opening remark?

Answer: "I understand you want to make a statement to me."

Question: And what was his response?

Answer: Yes.

Question: And then you sat down?

Answer: I sat down.

Question: And then what did you do?

Answer: I proceeded to tell him that when we complete the statement, if he gives me a statement, I'll speak to the District Attorney, I can't promise him anything, that for his cooperation I'll let the District Attorney know that he did cooperate, maybe when the time comes the District Attorney might put in a word for him but that I couldn't promise him. The only thing I'll promise him is that I'll speak to the District Attorney.

Question: At the time that you approached Mr. Jenkins, did you have a pad with you or notebook or--

Answer: No. Just these papers stapled together.

Question: Was there any stenographer in the police station at the time?

Answer: Not that I know of at that time.

Question: Did you use a tape record at all at the time?

Answer: No.

Question: And when you sat down, did you start making notes?

Answer: Yes.

Question: At what point did you make your first note? In other words, how long after you started speaking to Mr. Jenkins that you started writing?

Answer: About three or four minutes.

Question: And during those three or four minutes, other than telling him that you would intercede for him with the district attorney, if and when he's sentenced, did you say anything else.

Answer: No, not that I recall.

Rosenthal also testified that defendant indicated he would speak to a district attorney. According to Rosenthal, defendant stated that he had bought the automobile for $60 "from some kids" who had "changed the plates" and then he and Rowe had driven to the East Tremont section of the Bronx, holding up two grocery stores, one of which defendant had held up the previous Wednesday. Defendant sought to exculpate Rowe. However, Rowe had indicated one reason for holding up the first grocery store was that he needed money for his father's funeral.

At about 6:30 P.M. Assistant District Attorney Weaver arrived at the 48th Precinct and elicited an extensive statement from Rowe, which implicated defendant. Weaver then proceeded to question defendant in the presence of Rosenthal and a stenographer. This interrogation took about one-half hour, after a full advisement and acknowledgement of rights. Defendant thereupon expressed reluctance to give Weaver a statement, afraid that he might become confused and utter something at variance with what he had earlier told the police. At the suppression hearing, Weaver asked to read into the record the transcript of this dialogue with defendant. A portion of it is as follows:

"Question: Basically what I'm asking you right now, did you understand all the rights I have explained to you? Do you want to talk to me about the case?

Answer: I think it's best--I'm not really sure of myself...