People v. McGregor

• Decision Date: 15 October 1981
• Citation: 84 A.D.2d 610,444 N.Y.S.2d 231
• Parties: The PEOPLE of the State of New York, Respondent, v. Ernest J. McGREGOR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 231

444 N.Y.S.2d 231

84 A.D.2d 610

The PEOPLE of the State of New York, Respondent, v. Ernest J. McGREGOR, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 15, 1981.

John E. Clute, Plattsburgh, for appellant.

Joseph W. Kelley, Clinton County Dist. Atty., Plattsburgh, for respondent.

Before SWEENEY, J. P., and MAIN, WEISS, MIKOLL and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Clinton County, rendered October 29, 1980, convicting defendant upon his plea of guilty of the crime of rape in the first degree.

It appears from the record that defendant was stopped at approximately 7:45 P.M. on December 23, 1979 by a United States border patrolman and taken into custody by the New York State Police for questioning regarding an alleged rape. The only witness called by the People at the suppression hearing was a State Police officer who testified that at 10:30 P.M. on December 23, 1979, he advised defendant of his Miranda rights; that defendant waived those rights; that defendant thereafter confessed to committing the alleged rape; and that the confession was reduced to writing and signed by defendant. This officer also testified that defendant may have been interviewed prior to his interview with him; that after defendant was taken into custody he was taken to Ellenburg and then transported to the State Police barracks at Plattsburgh; and that defendant was in other offices at the Plattsburgh station prior to his interview with him commencing at 10:30 P.M.

At the conclusion of the suppression hearing it was determined by the court that the statement given by defendant was admissible at trial. Subsequently, pursuant to a plea bargaining arrangement, defendant entered a plea of guilty to the crime of rape in the first degree and was sentenced to an indeterminate term of imprisonment with a maximum term of nine years and a minimum term of three years.

On this appeal, defendant contends that the court erred in failing to suppress his alleged confession. Although not raised by defendant at the suppression hearing, he urges on appeal that he was questioned prior to being given his Miranda warnings at 10:30 P.M. on December 23, 1979 and thus the People failed to show that he was advised of his constitutional rights at the outset of the questioning.

The People have the burden of proving beyond a reasonable doubt that a statement was voluntary (People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318). Under the circumstances evident herein, an intelligent waiver of constitutional rights cannot be assumed (see Westover v. United States, 384 U.S. 436, 494, 86 S.Ct. 1602, 1638, 16 L.Ed.2d 694). Miranda warnings must precede the subjection of a defendant to questioning and will not be effective if given later unless there is such a definite break in the interrogation that it can be said that defendant returned, in effect, to the status of one who is not under the...