People v. Parker

• Decision Date: 21 September 1981
• Citation: 442 N.Y.S.2d 803,82 A.D.2d 661
• Parties: The PEOPLE, etc., Respondent, v. Eric PARKER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 803

442 N.Y.S.2d 803

82 A.D.2d 661

The PEOPLE, etc., Respondent, v. Eric PARKER, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 21, 1981.

William E. Hellerstein, New York City (Abigail Everett, New York City, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Alan D. Rubinstein, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and TITONE, GIBBONS and COHALAN, JJ.

HOPKINS, Justice Presiding.

The defendant has been convicted of criminal possession of a weapon in the third degree upon his plea of guilty. Prior to his plea a hearing pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179, was held on the defendant's motion to suppress his statements made to his parole officer, and the defendant's motion was denied. (101 Misc.2d 800, 421 N.Y.S.2d 561).

The defendant appeals, claiming that his statements should have been suppressed, and that, accordingly, his conviction must be reversed. We agree. Statements made to a parole officer by a parolee cannot be used against the parolee to establish his guilt with respect to a crime for which the parolee is indicted, where the circumstances are that the parolee was not given Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) at the time the statements were made, and the parolee was represented by counsel in the criminal proceedings under the indictment.

I

On April 22, 1978 the defendant was arrested on charges of criminal possession of a weapon in the third degree, assault in the second degree and attempted robbery in the first degree. He was arraigned the next day and counsel assigned. At the time the defendant was a Federal parolee. The defendant, on April 24, 1978, communicated with his parole officer and told him that he had been arrested.

The defendant visited his parole officer on April 26, 1978, and told him the nature of the charges against him, that he was free on bail, and that he was represented by counsel. The parole officer then asked the defendant about the circumstances of the arrest, warning him "that any discussion he had with me at that time could result in a possible parole revocation based on any statement he might want to make"; he did not, however, inform the defendant of his rights under Miranda. The defendant answered that he had been standing with a girlfriend on a street corner, when a passing car splashed water on them; that he shouted at the driver, whereupon the latter stopped his car and words were exchanged; that apparently the discussion grew heated, and the defendant attempted to leave; that a police car arrived, and he was told that he was under arrest for robbery of the persons involved in the dispute; and that the police found a gun near him. In reply to the direct question of the parole officer, the defendant said that the gun was his. At this time the defendant was not under detention and was not arrested by the parole officer.

In June, 1978 the parole officer conveyed this information to the Parole Commission. Nonetheless, the defendant was advised that no proceedings would be instituted for revocation of parole until the complaint against him had been determined. The parole officer at this time did not transmit any information to the District Attorney. Meanwhile, the defendant continued to report to his parole officer.

The case was presented to the Grand Jury in October, 1978. The Grand Jury failed to return an indictment, and on October 23, 1978 the charges against the defendant were dismissed. The defendant reported these facts to his parole officer by telephone and was told to come to the parole office to "talk about the details of that arrest in full * * * because we now have to deal with the Parole Commission in terms of the arrest and so forth."

When the defendant again reported, the parole officer repeated the warning that whatever the defendant said could be used against him to revoke his parole; nevertheless, no Miranda warnings were administered. On this occasion the defendant said that he possessed the gun because he was carrying a large sum of money to deposit as rent for an apartment he was about to lease. The parole officer asked the defendant whether he would put in writing what he had said. The defendant assented and was given a form to use. Five days later the defendant brought the written statement to the parole officer.

The written statement, in more particulars and elaboration, stated the substance of what the defendant had already orally communicated to the parole officer, together with a plea for favorable consideration. Following instructions from his supervisor, the parole officer, in December, 1978, notified the District Attorney of the defendant's statements. When the matter was resubmitted, the parole officer testified before the Grand Jury. On February 5, 1979 the Grand Jury indicted the defendant for criminal possession of a weapon in the third degree.

II

The defendant moved to suppress the statements made by him to his parole officer. A hearing was then held on the motion. At the hearing the parole officer testified concerning the circumstances and content of the oral and written statements of the defendant, and he also testified that the defendant, as a Federal parolee, was required to comply with the regulations of the United States Parole Commission, including the requirement of reporting periodically and notifying his parole officer if arrested.

Criminal Term denied the motion, holding that a probation officer is not a law enforcement agent within Miranda, and, hence, is not obliged to give Miranda warnings; moreover, the court said that defendant, a parolee, was not entitled to the assistance of counsel when interviewed by a parole officer, under the dictates of People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894, because at the time the defendant's written statement was made, which statement "triggered" the supervisor's order, the underlying criminal proceeding had been dismissed, and the defendant's counsel was no longer representing him (People v. Parker, 101 Misc.2d 800, 421 N.Y.S.2d 561).

The defendant's challenge to Criminal Term's determination assumes two lines. First, the defendant argues that a parole officer is in truth an agent of the State when he gathers information and transfers it to the District Attorney as the foundation for the prosecution of a crime. Second, the defendant submits that the oral and written statements were made at a time that the parole officer knew that the defendant was represented by counsel in the criminal proceedings against him, and that, accordingly, those statements must be suppressed under People v. Hobson (supra) and People v. Roberson, 41 N.Y.2d 106, 390 N.Y.S.2d 900, 359 N.E.2d 408; in addition, the defendant contends that the termination of the original complaint against him did not eliminate the defendant's right to counsel, since the information elicited dealt with the very facts on which the complaint had been based.

In answer, it is urged by the People that a parole officer is not a law enforcement officer, and that here the parole officer acquired the statements not as an agent of the District Attorney; and it is further argued that the statements were made while the defendant was not in a custodial setting. Moreover, it is contended by the People that the absence of the defendant's counsel did not render his statements inadmissible, because they were not made to a law enforcement officer, and that in the instance of the written statement received at a time when the defendant did not have counsel present, no right to counsel had been violated, since the criminal proceedings had already ended, and consequently the defendant at that point was not represented by counsel.

III

Preliminarily our inquiry must be directed toward the relationship between parole officer and parolee. Once a prisoner is released on Federal parole, his continued liberty depends on his observance of the conditions of the parole, and he remains in constructive custody during the period of the parole (U.S. Code, tit. 18, § 4210, subd. Minder v. Assistant Director, 6 Cir., 229 F.2d 432; cf. People ex rel. Natoli v. Lewis, 287 N.Y. 478, 41 N.E.2d 62. ^* One of the conditions of Federal parole is that the parolee shall report at stated intervals, and on request at other times, to his parole officer and give "complete and truthful" information (28 CFR 2.40[a][5]).

The relationship thus established is not altogether adversary in character (cf. People v. Peace, 18 N.Y.2d 230, 236, 273 N.Y.S.2d 64, 219 N.E.2d 419). Although the parole officer is under a duty to take action toward revocation of parole in the event the parolee breaches the terms of parole, at the same time the parole officer is entitled to receive, and the parolee obligated to give, accurate statements concerning the parolee's activities. As we have previously said, the parolee has a "vital interest in continued release" resting "upon his obedience and cooperation with his supervising parole officer." (People v. Alston, 77 A.D.2d 906, 907, 431 N.Y.S.2d 82; cf. People v. Ferguson, 90 Misc.2d 467, 395 N.Y.S.2d 330 Indeed, the parolee is duty bound to disclose to his parole officer an arrest while on parole on pain of revocation of parole for failure of disclosure. The parolee is thus thrust on the tines of a dilemma if, on the one hand, he must truthfully state the circumstances underlying his arrest or face the consequence of the revocation of parole, and, on the other hand, risk conviction because his statements may be used as evidence against him in a prosecution based on the arrest. In this difficult aspect of the...