People v. Kern

Decision Date31 July 1989
Citation149 A.D.2d 187,545 N.Y.S.2d 4
Parties, 58 USLW 2145 The PEOPLE, etc., Respondent, v. Scott KERN, Jason Ladone and Jon Lester, Appellants.
CourtNew York Supreme Court — Appellate Division

[149 A.D.2d 193] Hoffman & Pollok, New York City (John L. Pollok, Charles L. Weintraub, Edward Gasthalter, Susan C. Wolfe and Michael Gold, of counsel), for appellants.

Charles J. Hynes, Deputy Atty. Gen., New York City (Arthur Weinstein, Matthew S. Greenberg, Hillel Hoffman and Virginia Modest, of counsel), for respondent.

Caesar D. Cirigliano, New York City (Robert M. Baum and Arnold S. Cohen and Laura J. Miller, of counsel; Gail Cagney and Harry Zirlin, on the brief), for Legal Aid Soc., amicus curiae.

Before MOLLEN, P.J., and MANGANO, BROWN, KOOPER and SPATT, JJ.

MOLLEN, Presiding Justice.

This appeal arises out of the highly publicized confrontation between a group of white teenagers and three black men during the early morning hours of December 20, 1986, in Howard Beach, Queens County, which resulted in the death of one of the black men, Michael Griffith and the severe beating of his companion, Cedric Sandiford. The three defendants involved in this appeal, Scott Kern, Jon Lester and Jason Ladone, were convicted, after a joint jury trial, of manslaughter in the second degree and assault in the first degree as a result of their involvement in the events of that fateful night. Additionally, Kern and Lester were found guilty of conspiracy in the fifth degree. On appeal, the defendants contend, inter alia, that the evidence adduced at trial was legally insufficient to support their manslaughter and assault convictions, that their respective inculpatory statements made to the police [149 A.D.2d 194] should have been suppressed, and that the trial court erred in ruling that the defense, in exercising its peremptory challenges, was required to articulate a race-neutral explanation for its challenges to black jurors. The defendants also challenge the propriety of certain trial rulings and they argue that their respective sentences were excessive. Based upon our review of the extensive trial record herein and our analysis of the issues raised on appeal, we conclude that the judgments of conviction should, in all respects, be affirmed.

I. THE FACTS
INTRODUCTION

Shortly after the occurrence of the "Howard Beach incident", which drew considerable public attention and outcry, a Special

State Prosecutor was appointed (see, Executive Law § 63) to investigate the circumstances surrounding the attack and to prosecute those responsible. As a result of the ensuing investigation, the Grand Jury returned an eight-count indictment against Scott Kern, Jon Lester, Jason Ladone, Robert Riley, 1 Michael Pirone and seven other youths. Scott Kern and Jon Lester were charged with (1) the crimes of murder in the second degree (Penal Law § 125.25[2] and manslaughter in the second degree (Penal Law § 125.15[1] in connection with the death of Michael Griffith, (2) attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] and assault in the first degree (Penal Law § 120.10[1] with regard to the attack on Cedric Sandiford in the vicinity of 156th Avenue in Howard Beach and (3) assault in the second degree (Penal Law § 120.05[2] as a result of the attack on Sandiford outside the New Park Pizzeria in Howard Beach. Jason Ladone was charged with (1) manslaughter in the second degree in connection with Griffith's death and (2) attempted murder in the second degree and assault in the first and second degree arising out of the attacks on Sandiford. Robert Riley was charged with murder in the second degree and manslaughter in the second degree in connection with Griffith's death, and criminal facilitation in the fourth degree (Penal Law § 115.00[1]. Michael Pirone was charged with manslaughter in the [149 A.D.2d 195] second degree in connection with Griffith's death and assault in the second degree in connection with the attack on Sandiford near the New Park Pizzeria. All of the defendants were charged with riot in the first degree (Penal Law § 240.06). Additionally, Scott Kern, Jon Lester and Robert Riley were charged with conspiracy in the fifth degree (Penal Law § 105.05[1], and Jon Lester was charged with inciting to riot (Penal Law § 240.08). Kern, Ladone, Lester and Pirone were jointly tried before a jury
HUNTLEY HEARINGS
A. Jason Ladone

On the afternoon of December 21, 1986, one day after the Howard Beach incident occurred, Detectives Francis Paulson and Richard Mandel went to the Ladone residence in Howard Beach and spoke with Jason Ladone's mother. The detectives advised Mrs. Ladone that they wished to speak to her 16-year-old son in connection with the December 20th incident. The detectives testified that they did not consider Ladone to be a suspect at that time. Mrs. Ladone informed the detectives that her son was at his job in Brooklyn and offered to accompany the detectives to that location. Before leaving her home, Mrs. Ladone attempted several times to contact Ladone's father, as well as their family attorney. Her efforts were unsuccessful.

The detectives and Mrs. Ladone left the Ladone residence at approximately 2:15 P.M. in the detectives' unmarked car and arrived in Brooklyn at Ladone's place of employment approximately one hour later. Upon their arrival, Mrs. Ladone exited the car and returned several minutes later with her son. The detectives informed Ladone of the purpose of their inquiry and, when asked if he had any information regarding the December 20th attack, he stated that he had no knowledge of the incident. A few minutes later, however, Ladone stated that he did have some information but that his involvement in the incident was limited to punching "a guy a few times". Ladone stated that he had "nothing to do with the death of the other guy". At that point, the detectives ceased their questioning and advised Mrs. Ladone that her son would be arrested. When Mrs. Ladone asked if her son needed an attorney, Detective Mandel replied "[i]t's up to you". No further reference to an attorney was made by Mrs. Ladone in the detectives' presence. The detectives, in compliance with Mrs. Ladone's request, returned her to her house in Howard [149 A.D.2d 196] Beach and provided her with a paper containing their names and the telephone

number of the 106th Precinct. The detectives advised Mrs. Ladone that if she had any questions as to where her son would be, she should contact the precinct in about an hour

Thereafter, Ladone expressed a desire to cooperate with the police and the detectives brought him to the 112th Precinct so that he could view photographs in an attempt to identify the other persons involved in the attack. Upon his arrival at the precinct, Ladone was escorted to a room on the second floor and advised of his Miranda rights. Ladone signed a written waiver of his rights and, at approximately 4:15 P.M., provided an oral statement concerning his involvement in the attack. The statement was subsequently reduced to writing and signed by him. In his statement, Ladone recounted the events leading to the confrontation with the three black men and admitted to involvement in the subsequent chase and attack on those men. Sometime after Ladone provided the police with his written statement, he was transported to the 106th Precinct.

Meanwhile, Mrs. Ladone, after arriving home, continued her efforts to contact Ladone's father and their family attorney. Approximately 15 minutes after arriving home, she called the 106th Precinct and was advised that the detectives were not in the building. She eventually contacted Ladone's father at approximately 5:00 P.M. and, shortly thereafter, Mr. Ladone went to the 106th Precinct. Mrs. Ladone stated that Detective Mandel returned her phone call at approximately 6:00 P.M. but refused to respond to her questions concerning the whereabouts of her son. Mrs. Ladone finally contacted the family attorney at about 9:15 P.M. at his home. After receiving Mrs. Ladone's telephone call, the attorney telephoned the 106th Precinct and informed the police that he represented Ladone and that he was trying to locate him. The attorney was advised to contact the 112th Precinct. At approximately 11:15 P.M., the attorney located Ladone at the 106th Precinct.

The hearing court denied Ladone's motion to suppress his oral and written statements. The court initially found that Ladone's statement, made in his mother's presence in the police vehicle, was uttered before he was considered a suspect and that, therefore, Miranda warnings were not required. The hearing court noted that, while Mrs. Ladone did make inquiry concerning her son's need for legal representation, at no point did Ladone or his mother invoke Ladone's right to counsel. [149 A.D.2d 197] Additionally, the court determined that Ladone's custodial statements were made after he had voluntarily and knowingly waived his Miranda rights and before anyone on his behalf had contacted the precinct to indicate that an attorney had been obtained for him.

B. Scott Kern

On the evening of December 21, 1986, the police, based upon unconfirmed information provided by witnesses, came to believe that 17-year-old Scott Kern might have been a participant in the Howard Beach attack. Detectives Kelly and Fiorillo were instructed to proceed to the Kern residence for the purpose of interviewing him. The detectives arrived at the Kern home at approximately 3:30 A.M. and initially spoke to Scott's father. The detectives informed Mr. Kern that his son's name "came up" in the police investigation of the Howard Beach incident and they requested that Scott accompany them to the precinct. When Mr. Kern awakened his son, Scott told the detectives that he did not know anything about the attack. Mr. Kern and his son thereafter agreed to go to the precinct.

After their arrival at the 106th Precinct at approximately 4:10 A.M., the Kerns were escorted...

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