People v. Marchetta

• Decision Date: 12 June 1998
• Citation: 676 N.Y.S.2d 791,177 Misc.2d 701
• Parties: , 1998 N.Y. Slip Op. 98,424 The PEOPLE of the State of New York, Plaintiff, v. Robert MARCHETTA, Defendant.
• Court: New York City Court

Page 791

676 N.Y.S.2d 791

177 Misc.2d 701, 1998 N.Y. Slip Op. 98,424

The PEOPLE of the State of New York, Plaintiff, v. Robert MARCHETTA, Defendant.

Criminal Court of the City of New York,

Queens County.

June 12, 1998.

Decolator, Cohen & DiPrisco, Mineola (Neil L. Cohen, of counsel), for defendant.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Phyllis Weiss, of counsel), for plaintiff.

DARRELL L. GAVRIN, Judge.

The defendant is charged with violating Penal Law § 120.14[1], Menacing in the Second Degree and Penal Law § 240.20[1], Disorderly Conduct.

The People seek to introduce, and defendant seeks to suppress, a written statement given by the defendant to the Port Authority Police on August 16, 1998. A Huntley hearing was held before Judicial Hearing Officer Ernest Bianchi in Part HP-1 on March 31, 1998. The People called three witnesses: Lieutenant William Hanley, Detective Alex Velez and Lieutenant Michael Murphy. The defendant did not call any witnesses. This Court has reviewed the hearing transcript, the court file and memoranda of law submitted by the People and the defendant to the Judicial Hearing Officer. Based upon the foregoing, and the recommended Findings of Fact and Conclusions of Law, this court adopts the Judicial Hearing Officer's Findings of Fact, but modifies in part the Conclusions of Law, by denying the defendant's motion to suppress the statement he gave to the Port Authority police.

The testimony adduced at the hearing reveals the charges in this action originate from a traffic dispute that occurred on the morning of August 14, 1997. (Hearing Tr. p. 5.) The two complainants allege that a man followed them off the highway into a parking lot near building 14 at John F. Kennedy International Airport, their place of employment. (Hearing Tr. pp. 5-6; 16-20.) They further stated that the man proceeded to threaten them while brandishing a handgun. (Id.) The complainant's supervisor is alleged to have witnessed the incident. (Hearing Tr. p. 19.)

That same day, the complainants reported the incident to Lieutenant William Hanley, the Tour Commander at the Port Authority Police Department's Command Office at J.F.K. (Hearing Tr. p. 5.) The complainants provided Lt. Hanley with a description of the man, his car and the vehicle's licence plate number. (Hearing Tr. p. 5.) Later that morning, it was revealed that the vehicle in question belonged to the defendant, Robert Marchetta, a Port Authority police officer who worked at the Command Office. (Id.)

Lt. Hanley informed Deputy Inspector Talbert, the Commanding Officer on duty at the time, about the report he received from the complainants. He instructed Lt. Hanley to have the Detective Unit interview the complainants and to advise the defendant not to report to his post. (Hearing Tr. pp. 6-7.) After being interviewed by a detective, the complainants left the Command Office. (Hearing Tr. p. 7.) One of the complainants, David Sumbundu, returned almost immediately and told Lt. Hanley that the car driven by the man who had threatened them was in the parking lot. (Id.) Lt. Hanley indicated to Mr. Sumbundu that he was aware of this information and they would investigate. (Hearing Tr. p. 8.) Subsequently, Mr. Sumbundu inadvertently observed the defendant, in uniform, standing at a sign-in area, and he told Lt. Hanley the defendant was the man who threatened him and his companion. (Hearing Tr. pp. 8-9.) Lt. Hanley updated Deputy Commander Talbert as to these events, and he directed Lt. Hanley to notify Captain MacCase, Commanding Officer of the Special Investigations Unit. (Hearing Tr. p. 9.)

On August 15, 1997, Det. Alex Velez of the Port Authority's Special Investigations Unit was assigned the investigation. (Hearing Tr. pp. 14-15.) He interviewed both the complainants, who essentially reiterated the version of facts they previously told Lt. Hanley. (Hearing Tr. pp. 16-19.) Det. Velez testified that he was aware Captain MacCase had contacted the Queens County District Attorney's office and that the Captain was told to call back on August 18, 1997, whereupon a meeting would be scheduled between the Special Investigations Unit and the District Attorney's Office relative to the incident. (Hearing Tr. p. 33.)

On Saturday, August 16, 1997, Lieutenant Michael Murphy, the Executive Officer of the

staff line at J.F.K., received a memo from Captain Barbara McClancy directing him to get a "handwritten" from the defendant regarding the incident of August 14th. (Hearing Tr. p. 44.) Unclear about the procedures he should follow in obtaining the handwritten statement, Lt. Murphy called Deputy Inspector Talbert who advised him to read Rule 3 ¹ to the defendant prior to obtaining the written statement. (Hearing Tr. p. 44.) Lt. Murphy advised Deputy Inspector Talbert that as there was a union delegate on duty that day, he would call him and have him present when he requested the handwritten statement from the defendant. (Hearing Tr. p. 45.)

The defendant and the union delegate, Officer Michael Cardlin, were summoned to the Tour Commander's office in building 269. (Hearing Tr. pp. 46-47.) When they arrived, Lt. Murphy advised the defendant that he "had a directive" and "needed to get a handwritten" concerning the incident on August 14th. (Hearing Tr. p. 48.) After being read Rule 3, the defendant and the union delegate left the office while Lt. Murphy remained behind. (Hearing Tr. p. 49.) Approximately one hour later, the defendant and the union delegate returned and submitted the written statement in question. (Id.)

In a written memorandum submitted to the Judicial Hearing Officer, the defendant avers that his written statement should be suppressed, because "once the District Attorney's Office was notified of the criminal complaint lodged against the defendant, the Port Authority Police Department had an affirmative obligation to give the defendant Rule 4 ² 'use immunity' pursuant to the Police Operations Manual and the Collective Bargaining Agreement." The defendant further contends that his constitutional and contractual rights were violated by being ordered to submit a Rule 3 statement without being advised that a criminal complaint had been filed as a result of the incident. The People argue, inter alia, the particular circumstances surrounding when the statement was given govern its admissibility, not the terms of the collective bargaining agreement. Furthermore, the People submit that "a voluntary statement made in accordance with one's Constitutional rights, is admissible [in a criminal proceeding] regardless of what one's contract requires."

Conclusions of Law

The case at the bar presents unique and difficult issues involving two competing fundamental interests. First, is the defendant's Fifth Amendment right not to be compelled to be a witness against himself in a criminal proceeding. This right is significant and, where appropriately exerted, privileges an individual "not to answer official questions put to him in any ... proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." (Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 [1973].) Balanced against this right is the general public's fundamental interest in holding public servants accountable for breaches of their trust. It is well settled that "[p]ublic employees, charged with a public trust, do not have an absolute right to refuse to account for their official actions and at the same time retain their employment." (Matter of Matt v. Larocca, 71 N.Y.2d 154, 159, 524 N.Y.S.2d 180, 518 N.E.2d 1172.)

The defendant seeks suppression primarily on the grounds of an alleged violation of his union contract and cites in support People v. Kleeman, 131 Misc.2d 762, 501 N.Y.S.2d 576 [Sup.Ct. Queens Cty.1986]. The defendants in Kleeman, New York City police officers, sought to suppress a number of statements taken in regard to an off-duty incident in which Officer Kleeman was alleged to have discharged his weapon. (Id. at 765, 501 N.Y.S.2d 576.) As a result of the incident, Kleeman completed a number of required forms, including a firearm discharge report. (Id.) This report was inadvertently lost and almost a month after Kleeman had "concededly" become the target of a criminal investigation he was asked to complete three additional reports. (Id.) The Court suppressed the new reports and found their "admission at trial would be in stark contravention of the guidelines established by [Patrol Guide § ]118-9." ³ (Id. at 767, 501 N.Y.S.2d 576.) This Court has given careful consideration to this authority, but will, respectfully, chart a different course.

What the defendant seeks is an interpretation of the terms and conditions of the collective bargaining agreement, a ruling that a breach of that contract occurred and retroactive enforcement of the rights he feels are due under that agreement. This relief is not the type this Court is empowered to grant (cf. People v. Salzone, 98 Misc.2d 131, 413 N.Y.S.2d 547; People v. Feinberg, 48 Misc.2d 187, 264 N.Y.S.2d 424). The jurisdiction of the Criminal Court is restricted to hearing, trying and determining criminal charges, specifically misdemeanors and petty offenses. (see, N.Y. Const., Art. VI, § 15[c]; N.Y.City Crim.Ct.Act § 31; C.P.L. §§ 10.10[3], [7]; 10.30). A remedy for a breach of this agreement is available to the defendant in the proper forum if or when he seeks redress for any job related sanctions he might incur. Thus, in determining whether the defendant's statement should be suppressed, the proper avenue of inquiry for this Court is to analyze the particular circumstances as presented at the time the statement was made and decide whether they were "likely to exert such pressure [on the defendant] as to disable him from making a free and rational choice." (Miranda v. Arizona, 384 U.S. 436, 464-65, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966].)

In a...