People v. Mayorga

• Decision Date: 02 April 1984
• Citation: 474 N.Y.S.2d 99,100 A.D.2d 853
• Parties: The PEOPLE, etc., Respondent, v. Jorge MAYORGA a/k/a Carlos Martin, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 99

474 N.Y.S.2d 99

100 A.D.2d 853

The PEOPLE, etc., Respondent, v. Jorge MAYORGA a/k/a Carlos Martin, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 2, 1984.

Fred M. Schwartz, Jericho, for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Denise Parillo, Asst. Dist. Attys., Mineola, of counsel), for respondent.

Before TITONE, J.P., and THOMPSON, BRACKEN, BROWN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Nassau County, rendered July 7, 1981, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's motion which sought to suppress certain oral and written statements made by him to the police.

Judgment reversed, on the law and the facts, plea vacated, motion granted insofar as it is to suppress all of the defendant's oral and written statements made to the police, and case remitted to the County Court, Nassau County, for further proceedings.

On June 20, 1980, at approximately 7:00 P.M., several detectives assigned to the Long Island Drug Enforcement Task Force were at the intersection of the Long Island Expressway and Little Neck Parkway, near the Nassau-Queens border, in connection with a prearranged plan to purchase cocaine. Shortly after 7:00 P.M., another car approached in which a confidential informant, the defendant and another were seated. After the transaction was consummated, a detective ordered a surveillance unit to arrest everybody in the vehicle.

The defendant was removed at gunpoint, patted down, and, prior to the administration of Miranda warnings, was asked by one of the officers, "Do you know what's going on here?" He responded, "I'm doing a favor for a friend", indicating, as well, that he was to have made $500 on the deal. The defendant was thereupon transported to the office of the Nassau County Narcotics Squad.

During the trip, Miranda warnings were administered and the defendant stated that "[a] friend of mine asked me if I knew anybody who had cocaine for sale, and I told him I did. I met with [another person arrested at the same time] and we came out here and I was arrested". He again admitted that he was to have made $500 on the transaction. For the remainder of the trip, the defendant was silent.

The defendant and the officers arrived at the office of the narcotics squad at about 7:45 P.M. Pedigree and related information was obtained from the defendant, immediately after which the defendant was asked "if he was interested in helping himself" and he answered: "Yes, I'll do anything". The detectives indicated that he could help himself if he would tell them and show them who was engaged in selling cocaine. The defendant said that "[i]f you can get me out" he would do so as he knew people "in Florida and * * * in New York".

The defendant was again advised of his Miranda rights and he initialed a waiver form. He thereupon made a detailed oral confession which was reduced to writing and signed.

After a hearing, the County Court suppressed the defendant's first statement, made on the scene prior to the administration of Miranda warnings (the People assume, without conceding, that suppression of this statement is mandated by People v. Quarles, 58 N.Y.2d 664, 458 N.Y.S.2d 520, 444 N.E.2d 984, cert. granted 461 U.S. 942, 103 S.Ct. 2118, 77 L.Ed.2d 1299), but refused to suppress the subsequent oral statement made in the police vehicle and the oral and written confessions made at the police precinct. We reverse.

Based upon a practical "assessment of external events", we are compelled to conclude that the defendant was "subjected to such a continuous interrogation" that the Miranda warnings subsequently administered "were insufficient to protect his rights" (People v. Chapple, 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 341 N.E.2d 243). We perceive no "definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v. Chapple, supra, p. 115, 378 N.Y.S.2d 682, 341 N.E.2d 243; see, also, People v. Johnson, 64 A.D.2d 907, 408 N.Y.S.2d 519, affd. 48 N.Y.2d 674, 421 N.Y.S.2d 881, 397 N.E.2d 392; People v. Glover, 58 A.D.2d 814, 396 N.Y.S.2d 268).

The dissent concedes that suppression of the oral statements made at the scene of the arrest and in the police car is required and agrees that there is a temporal proximity between those oral statements and the oral and written confessions made at the police precinct. Nonetheless, it finds that what it characterizes as "the intervening bargaining acts of the defendant" constitute the requisite break in the chain of events. We cannot agree.

As set forth above, the record indicates that the defendant's purported agreement to help the officers was neither spontaneous nor the result of an independent, voluntary act by the defendant. It was initiated by the arresting officers and rather than a break in the interrogation, it was part and parcel of it.

Moreover, we also disagree with the dissenters' suggestion that a harmless error analysis may be employed, if, as is their view, suppression of only the oral statements made before defendant's arrival at the police precinct is required. "[W]hen a conviction is based upon a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant's decision, unless at the time of the plea he states or reveals his reason for pleading guilty" (People v. Grant, 45 N.Y.2d 366, 379-380, 408 N.Y.S.2d 429, 380 N.E.2d 257, emphasis added). There is no indication upon which to hinge such a determination here for "a confession is a most serious matter in the trial of a criminal case" and "[i]t is enough * * * to note that the confession was a likely factor which might have induced the plea and might have affected substantially a verdict upon a trial" (People v. Ramos, 40 N.Y.2d 610, 618-619, 389 N.Y.S.2d 299, 357 N.E.2d 955, see, also, People v. Purdy, 53 N.Y.2d 806, 439 N.Y.S.2d 920, 422 N.E.2d 580; People v. Tyler, App.Div., 471 N.Y.S.2d 328; but cf. People v. Coles, 89 A.D.2d 471, 455 N.Y.S.2d 653).

TITONE, J.P., and BRACKEN and BROWN, JJ., concur.

RUBIN, J., dissents and votes to affirm the judgment, with the following memorandum, in which THOMPSON, J., concurs.

While I agree with my brethren of the majority that the defendant's oral statements to the police at the time of his arrest and while being transported to the police precinct should be suppressed, I cannot agree that his oral confession, made at the police precinct and reduced to a signed, written statement, should also be suppressed. Since the rationale for not suppressing the oral confession and its written counterpart is the same, both statements will hereafter be referred to as the precinct confessions.

Whether an accused believes himself so committed by a prior statement that he feels bound to make another depends on his state of mind, which is a factual question (People v. Tanner, 36 A.D.2d 690, 319 N.Y.S.2d 406, affd. 30 N.Y.2d 102, 331 N.Y.S.2d 1, 282 N.E.2d 98). When statements are sought to be suppressed premised on the "cat out of the bag" theory (see United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654), an examination of the defendant's testimony as to his state of mind and, thus, an assessment of his credibility is required (People v. Chapple, 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 341 N.E.2d 243; see People v. Tanner, supra ). The defendant did not testify at the Huntley hearing. Consequently, there is no basis in fact for concluding that the defendant made his subsequent statement in the police vehicle and the precinct confessions on constraint of his first pre-Miranda warning statement (see People v. Glover, 58 A.D.2d 814, 815, 396 N.Y.S.2d 268).

The majority concludes that the defendant's postwarning statements must be suppressed on the theory that these statements were made in response to a continuous chain of...