People v. Jones

Decision Date26 May 1981
Citation440 N.Y.S.2d 248,81 A.D.2d 22
PartiesThe PEOPLE, etc., Respondent, v. Donald JONES, Appellant.
CourtNew York Supreme Court — Appellate Division

Joel S. Ezra, New York City, for appellant, and appellant pro se.

Eugene Gold, Dist. Atty., Brooklyn (A. David Stern, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and LAZER, GIBBONS and GULOTTA, JJ.

GULOTTA, Justice.

This appeal requires us to consider whether a claim based upon an alleged lack of probable cause to arrest an individual is available on appeal as a ground for the suppression of statements held to be voluntary and admissible by the hearing court. We hold that the issue of probable cause, raised tentatively but never pursued at a suppression hearing devoted almost entirely to Fifth Amendment concerns, has not been preserved for appellate review. Finding no defect in the plea, we affirm.

I

Appellant pleaded guilty to murder in the second degree (felony murder) in satisfaction of a multi-count indictment charging him and his two codefendants, Terrence McMichaels and David Green, with the crimes of murder, attempted murder, assault, robbery and criminal possession of a weapon. 1 The charges stem from the armed robbery of a subway token booth clerk in Brooklyn on November 9, 1977, during which one Transit Authority worker was killed and another seriously injured. 2 During his plea allocution, appellant admitted that both he and McMichaels had gone to codefendant Green's house on the morning in question and that he knew that Green was armed. 3 Later that morning, appellant and his codefendants went to the subway station at Van Siclen and Pitkin Avenues, in Brooklyn, knowing that "we were going to rob something", and when they got there, they decided to rob the token booth clerk. Following the robbery, appellant learned for the first time that Green had shot a man while he and McMichaels were fleeing the scene. Appellant nevertheless took his share of the stolen money, approximately $16.

Around 7:30 that evening, acting on information provided by a confidential informant, a team of six plainclothes police officers observed appellant and McMichaels coming out of Green's house, and followed them to the corner of Pennsylvania and Livonia Avenues. At that point, the team of officers approached the pair, identified themselves as policemen, and held them at gunpoint. Transit Police Detective Edward Alexander thereupon asked the two suspects whether "their names were Donald and Terrence", and each replied with his own name. Upon being informed by Alexander that the officers were investigating a robbery at a token booth which had occurred earlier that day, appellant admitted, according to Alexander, that he was "there", but that he "didn't do any shooting." 4 The pair was then placed in a patrol car and driven to a location on Bradford Street near Livonia Avenue, where they were identified by members of David Green's family. They were then transported to the 75th Precinct where, after being advised of their constitutional rights, each defendant was interrogated by Detective Louis Rango and, later, after renewed Miranda warnings, by Assistant District Attorney Edward McNew. These interrogations produced inculpatory statements in which each of the two defendants admitted his complicity in the fatal robbery.

Prior to entering their respective guilty pleas, both appellant and McMichaels moved to test the admissibility of their inculpatory statements, and a jointHuntley hearing was held before Justice MIRABILE. Appellant sought at that time to suppress his admissions on the ground that they were "unlawfully extracted * * * through fear, duress and coercion by law enforcement officers" in violation of his constitutional rights under the Fifth Amendment, but no violation of any of his Fourth Amendment rights was alleged in the moving papers. At the hearing, appellant professed that the police officers did not take him and McMichaels directly to the precinct house after their arrest, but rather that they drove them around for about 30 minutes "trying to make us * * * confess", without ever advising them of their constitutional rights. During this interval, according to appellant, one of the officers pointed a gun at him and threatened to "blow * * * brains out" if he refused to tell the officer "what happened". Appellant further maintained that, prior to his interrogation at the police station, four officers had threatened him with guns and insisted that " 'when the D.A. get here' ", appellant and McMichaels " 'tell him whatever this other officer is going to come in here and tell you to tell him.' " 5 Appellant also gave testimony that he had been smoking marijuana combined with "angel dust" and drinking alcoholic beverages on the morning of November 9, 1977, which was counterbalanced by Detective Rango's testimony that appellant was not "high" on angel dust at the time that he was questioned. Thus, the essence of appellant's position at the Huntley hearing was that his station house confessions had not been the product of any voluntary waiver of his Fifth Amendment rights. 6

Although appellant made no attempt during the presentation of his case at the suppression hearing to contest the existence of probable cause for his arrest, the issue was broached during the People's case when appellant cross-examined Detective Alexander concerning the inculpatory statement allegedly made by the former during their initial encounter. On direct examination, Alexander testified to the circumstances surrounding the arrest, but was not questioned with regard to the source or accuracy of the information which prompted the officers to approach appellant and McMichaels on the corner of Livonia and Pennsylvania Avenues. On cross-examination, however, appellant's attorney, George Farkas, provoked an objection by the People when he asked the detective about the nature of the information which had led the police to arrest appellant and McMichaels, and the following colloquy ensued:

"MR. FARKAS: If your Honor please, the stop of these defendants on a public street is certainly relevant to the suppression. If they were stopped for no reason, whatsoever, then it is suppressive [sic ].

"THE COURT: What does that have to do with the Huntley hearing?

"MR. FARKAS: If the statement is made because the defendants are stopped on a public place by police officers for no reason whatsoever, any fruits of that stop or that search is suppressible. And if he stopped them because they didn't like the way their faces looked, it is suppressible. And if they have reason to stop them, then it is relevant.

"THE COURT: [Objection o]verruled."

Alexander proceeded to testify that the information implicating appellant and McMichaels had been supplied by an "informant" whose identity was known to Alexander and with whom he had worked on "previous occasions". 7 The detective then indicated that both he and his partner had spoken personally with the informant, who had informed them that while he (the informant) had not been an eyewitness to the crime, he had heard "from some other sources" that appellant, McMichaels and Green "were involved" in the robbery and could be found at Green's house. Alexander further indicated that it was "solely on the basis of" the informant's confidences that appellant and McMichaels were stopped on the evening of November 9, 1977, and that the police had intended to take the codefendants into custody from the outset. At this point, the prosecutor conceded that "the defendants were being apprehended at that time."

Appellant thereupon terminated his cross-examination of Detective Alexander subject only to his request to inspect the witness' notes and other police reports relating to the arrest. However, after a brief discussion concerning the documents to be produced, the prosecutor announced to the court that "the People do not intend to introduce the statement that Mr. Jones made to this detective and that "based on that Mr. Farkas has told me that the detective does not have to come back this afternoon with his memo book." The agreement was sealed in the following colloquy:

"MR. FARKAS: Yes, your Honor. If the representation is that the statement will not be introduced in evidence, then the testimony of the officer is basically useless to the trial, and I have no other questions of him.

"THE COURT: You mean the statement by Mr. Jones to this witness?

"MR. FARKAS: Allegedly made to this witness. I would submit that it is unconstitutional in its nature, but if Mr. Murphy is willing to concede that he wouldn't use it, then I don't need this witness.

"MR. MURPHY: I don't intend to have the witness testify to that statement during the trial, unless the defense opens up the door. But based on what we heard so far, it is not something that I intend to use.

"THE COURT: Come up here a moment, both of you.

"(Discussion at side bar, off the record)

"MR. FARKAS: Just so that we are clear, your Honor, I believe that the representation of the District Attorney is that he will not introduce that statement attributed to Donald Jones either through Detective Alexander or anybody else that was there at that time. That statement is out.

"MR. MURPHY: Correct, your Honor, unless two things happen: either the defense opens the door or the defendant himself testifies and denies making that statement.

"MR. FARKAS: I know about People v. Harris.

"THE COURT: Then, in other words you will not use that.

"MR. MURPHY: On my case I do not intend to use that statement.

"Based on that, then Detective Alexander can leave. He does not have to bring back his memo book.

"THE COURT: He can.

"MR. FARKAS: He can go back from whence he came."

During the remainder of the hearing, neither appellant nor his codefendant made any further inquiry into the sufficiency of the information supplied by the confidential informant to establish probable cause, and the...

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