People v. Ripic

• Decision Date: 10 September 1992
• Citation: 587 N.Y.S.2d 776,182 A.D.2d 226
• Parties: , 3 NDLR P 282 The PEOPLE of the State of New York, Appellant, v. Joanne RIPIC, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 776

587 N.Y.S.2d 776

182 A.D.2d 226, 3 NDLR P 282

The PEOPLE of the State of New York, Appellant, v. Joanne RIPIC, Respondent.

Supreme Court, Appellate Division,

Third Department.

Sept. 10, 1992.

Robert M. O'Leary (Kenneth S. Kagan, of counsel), Binghamton, for appellant.

Gerald F. Mollen, Dist. Atty. (Kevin P. Dooley, of counsel), Binghamton, for respondent.

Joseph Calluori (Teresa A. Curtin, of counsel), New York City, for New York State Ass'n of Criminal Defense Lawyers, amicus curiae.

Before MIKOLL, J.P., YESAWICH, LEVINE, MERCURE and CREW, JJ.

CREW, Justice.

Appeal from an order of the County Court of Broome County (Smith, J.), entered August 15, 1991, which granted defendant's motion to suppress evidence.

This is an appeal from County Court's order suppressing all written and nonwritten statements of defendant. The indictment charging defendant with murder in the second degree alleges that she and her son, Roy G. Rowe Jr., acting in concert, intentionally shot and killed defendant's husband, Thomas Ripic. The relevant and uncontroverted facts at the suppression hearing follow.

On July 12, 1990 at about 8:00 A.M., the police were dispatched to defendant's home in response to a reported death at the residence. Upon arrival, the police observed defendant standing on the enclosed front porch, pounding her fists on a window and screaming. They then found defendant's husband lying in a pool of blood on the front porch and determined that he was dead, apparently due to gunshot wounds to the head. Shortly thereafter, defendant lost consciousness and was taken by ambulance to the hospital at the direction of medical personnel who were on the scene. It was established that defendant was deaf and efforts were made to locate an interpreter. Eventually, Jane Long, who is deaf, and her daughter, Jennifer Long, were contacted by an Assistant District Attorney and asked to assist at the hospital. Although the Longs were not certified interpreters, they were active in the deaf community and had some knowledge of the various methods used to communicate with the deaf. Shortly after the Longs arrived in defendant's hospital room, two police investigators arrived and entered defendant's room after learning from hospital staff that it was medically appropriate for them to talk to defendant.

The investigators began questioning defendant at about 11:17 A.M. As defendant lay in her hospital bed, connected to a heart monitor and receiving dextrose intravenously, Jennifer Long sat at the foot of the bed, Jane Long was on one side of the bed and the investigators were on the other side. Because Jennifer can hear, she interpreted the officers' questions for defendant, using a combination of voice, hand signs and finger-spelling. Defendant would answer in sign and Jane would speak defendant's answer. If Jennifer had difficulty with a particular sign, Jane assisted. Through this process, defendant related a series of events leading up to the discovery of the victim's body, which implicated neither herself nor Rowe. Defendant's explanation was communicated by telephone to other officers who were questioning Rowe. The investigators at the hospital were instructed to clarify discrepancies between defendant's version of the events and Rowe's and were also advised, "While you're interviewing her, consider that it's possible this is the person that shot [the victim]."

Informed of the discrepancies, defendant related a more detailed version of the events which culminated in defendant's assertion, "I had to kill him." Again, the questioning stopped and this information was conveyed to the other investigators, who instructed the investigators at the hospital to clarify the statement. In response to further inquiry, defendant indicated that she and Rowe wanted to kill the victim because he was abusive and she felt that she could not divorce him. Thus, defendant gave her son the key to a gun cabinet that was in the house. The next morning, Rowe awakened her and said "it's done". At about 12:34 P.M., defendant was released from the hospital at the officers' request and was taken to the police station. The Longs went to the police station as well. Defendant was not advised of her Miranda rights while she was at the hospital.

Following the 10-minute ride from the hospital to the police station, defendant was taken to the bathroom by one of the investigators. Thereafter, defendant was advised of the Miranda warnings and Jennifer Long translated these warnings to sign language. Jennifer could not recall at the hearing, however, exactly what the investigator said or how she signed the warnings to defendant. Jane Long recalled that Jennifer did not use the sign, "right", because the Longs "weren't sure [defendant] would understand that * * *. [W]hen [Jennifer] said you have the right to remain silent, it was more like you can stop talking. You're allowed not to say any more." The investigators again posed their questions through Jennifer and Jane interpreted defendant's answers. Although the police department had a stationary video camera, only a typewriter was used to record the investigators' questions and defendant's responses. After examining the typed statement, defendant inquired as to the definition of the word "attorney" and changed the statement, in her own handwriting, to more clearly indicate that it was not she but her son who actually killed the victim. Defendant then signed the statement. After a lunch break, defendant was again advised of her Miranda rights and a second written statement was taken clarifying that defendant knew when she gave Rowe the key to the gun cabinet that Rowe was going to kill the victim.

County Court suppressed all of defendant's statements, concluding that she was "in custody" from the moment the investigators began to question her at the hospital by reason of the fact that her freedom to move was restricted by her attachment to the electrocardiogram and intravenous feeding bottle. In so doing, County Court ignored recent cases from the United States Supreme Court and the Court of Appeals which define with substantial specificity the nature and degree of the restriction of movement required for a finding that a person is "in custody" for Miranda purposes. For the reasons that follow, we hold that defendant was not "in custody" prior to her first inculpatory statement.

In California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275, the United States Supreme Court stated that "[a]lthough the circumstances of each case must certainly influence a determination of whether a suspect is 'in custody' for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest" (id., at 1125, 103 S.Ct. at 3520 [emphasis supplied], quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714). Contrary to the view implicitly adopted by the dissent, a finding of restricted movement or deprivation of "freedom of action" (Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694), even when effected by the police, does not, ipso facto, create a custodial situation. Rather, the particular detention or restriction of movement must rise to the level of a de facto arrest before an individual will be deemed "in custody" for purposes of Miranda (see, Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317; People v. Bennett, 70 N.Y.2d 891, 524 N.Y.S.2d 378, 519 N.E.2d 289).

Both Berkemer v. McCarty (supra) and People v. Bennett (supra) dealt with investigatory inquiries made during the course of a roadside detention or traffic stop. A review of the salient facts in each case plainly reveals that the defendants in question were "seized" within the meaning of the 4th Amendment and that reasonable individuals in their positions, innocent of any crime, could only reach one conclusion--they were not "free to leave". Despite the significant restraints upon the defendants' freedom of action, the respective courts declined to hold that the defendants were "in custody" for Miranda purposes.

Further support for the proposition that "custody" is synonymous with "de facto arrest" is found in People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861 and People v. Crocker, 125 A.D.2d 132, 512 N.Y.S.2d 589. In Hicks, the Court of Appeals considered whether a particular detention was a lawful investigatory stop or an arrest and cited to People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89, in support of its statement that "[w]e have rejected as standards for determining when a de facto arrest has taken place the wholly subjective belief of the officer, as well as that of the citizen * * * and looked instead to 'what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position' " (People v. Hicks, supra, 68 N.Y.2d at 240, 508 N.Y.S.2d 163, 500 N.E.2d 861, quoting People v. Yukl, supra, 25 N.Y.2d at 589, 307 N.Y.S.2d 857, 256 N.E.2d 172). This court employed the reasonable person test of Yukl in People v. Crocker (supra) and concluded that under the particular facts of that case, the defendant in Crocker was not "in custody" before the formal arrest because an innocent person in the defendant's position would not have reasonably believed that he or she was under arrest at that time (People v. Crocker, supra, 125 A.D.2d at 134-135, 512 N.Y.S.2d 589).

It follows that essential to a determination that a person, who has not been formally placed under arrest, has been subjected to restraints comparable to a formal arrest is an examination of the circumstances and the atmosphere in which the questioning takes place in order to ascertain whether the concerns that powered Miranda are implicated (see, Berkemer v. McCarty, supra; Wilson...