People v. Sirno

• Decision Date: 27 November 1990
• Citation: 563 N.Y.S.2d 730,76 N.Y.2d 967,565 N.E.2d 479
• Parties: , 565 N.E.2d 479 The PEOPLE of the State of New York, Respondent, v. Elias Barrientos SIRNO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 730

563 N.Y.S.2d 730

76 N.Y.2d 967, 565 N.E.2d 479

The PEOPLE of the State of New York, Respondent, v. Elias Barrientos SIRNO, Appellant.

Court of Appeals of New York.

Nov. 27, 1990.

Mary C. Rothwell and Philip L. Weinstein, New York City, for appellant.

John J. Santucci, Dist. Atty. (Seymour Roth, Kew Gardens, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed.

Following a Huntley hearing, Supreme Court found that, subsequent to placing defendant under arrest, a detective read defendant a statement of his Miranda rights and proceeded to ask defendant a question. 151 A.D.2d 621, 542 N.Y.S.2d 368. Defendant did not respond; rather, he asked in English if he could see the warnings in Spanish. The detective obtained a card with the Miranda warnings written in Spanish and instructed defendant to read it, record "yes" or "no" after each statement and, if he did not understand, to so indicate. Defendant wrote "yes" next to each statement, did not ask any questions and immediately proceeded to give a statement to the detective. In light of these undisturbed findings, the courts below properly held defendant implicitly waived his Miranda rights. We have previously held that a waiver may be inferred (see, People v. Davis, 55 N.Y.2d 731, 447 N.Y.S.2d 149, 431 N.E.2d 634), and it is difficult to imagine that a defendant could implicitly manifest waiver in a manner other than cooperating with his or her interrogation, or that such cooperation could be interpreted as anything other than the defendant's intention to waive those rights. Accordingly, where, as here, undisturbed findings have been made that a defendant clearly understands his Miranda rights and promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights (see, People v. Davis, id.; North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286; cf., People v. Williams, 62 N.Y.2d 285, 290, 476 N.Y.S.2d 788, 465 N.E.2d 327).

TITONE, Judge (dissenting).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court held that a suspect in custody cannot be interrogated until he has been sufficiently informed of his rights and has decided to waive them. While it is well established that the required waiver need not be explicit and may be inferred from the suspect's conduct (North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286; see, People v. Davis, 55 N.Y.2d 731, 447 N.Y.S.2d 149, 431 N.E.2d 634), the Supreme Court has never abrogated the basic principle that the inference may not be made "simply from the silence of the accused after the warnings are given or simply from the fact that a confession was in fact eventually obtained." (Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, supra.) In this case, unlike most others in which courts have found waivers from the suspect's conduct, there was, in truth, nothing more than the accused's silence and the bare fact that a confession was obtained. Accordingly, I dissent from the majority's decision to uphold the denial of defendant's suppression motion.

A brief comparison of the salient facts in this case with the facts in other cases in which waivers have been found demonstrates the degree to which the majority has violated the Miranda prescription. In North Carolina v. Butler (supra), the Court held that a finding of waiver was not precluded where the defendant, after affirmatively stating that he understood his rights, told the police he was willing to speak but would not sign a written waiver form (see also, United States v. Ogden, 5th Cir., 572 F.2d 501). Two other significant Federal decisions found valid waivers where the suspect had affirmatively stated he understood his rights and then made his inculpatory statement (United States v. Hilliker, 9th Cir., 436 F.2d 101 [cited in North Carolina v. Butler, supra, 441 U.S. at 375, n. 5, 99 S.Ct. at 1758, n. 5]; United States v. Mix, 5th Cir., 446 F.2d 615; accord, State v. Baker, 2 Kan.App.2d 395, 580 P.2d 90).

In Gorham v. Franzen, 7th Cir., 760 F.2d 786, 794, the Court of Appeals for the Seventh Circuit surveyed the case law and adopted a "totality of the circumstances" test, listing as appropriate factors " 'the [defendant's] age, experience, education, background, and intelligence, and * * * capacity to understand the warning given him' " (see, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461). In finding a waiver on the facts before it, the Gorham court stressed the defendant's extensive prior experience with the criminal justice system and his positive acknowledgement that he understood his rights as they had been given to him (id., citing LaFave & Israel, Criminal Procedure, at 310 [1985 ed.]; accord, Fleming v. State, 284 Ark. 307, 681 S.W.2d 390). A similar approach was taken in State v. Aversa, 197 Conn. 685, 696, 501 A.2d 370, 376, in which a waiver was found where the accused told the detective that he understood the rights that had just been read and "[h]is overall attitude and conduct exhibited a street-wise familiarity with police procedures." Indeed, in the one recent case in which we squarely considered the problem of inferring a Miranda waiver from the suspect's conduct, this Court took pains to note that the "defendant had been arrested on approximately 11 prior occasions." (People v. Davis, 55 N.Y.2d 731, 733, 447 N.Y.S.2d 149, 431 N.E.2d 634, supra.)

In contrast to these cases, this case involves no special facts that could serve to distinguish it from all others in which the police elicit an incriminating statement before obtaining a waiver of the suspect's Miranda rights. The record here does not reveal an extensive criminal history, such as was present in Gorham and Davis. Nor are any other special circumstances present which would support the inference that a conscious and deliberate waiver had occurred. In fact, unlike every other case in which a waiver has been found, this case does not even include a positive acknowledgement by the defendant that he understood the rights he was waiving. For that reason, the majority's resort to the talismanic "mixed question" doctrine, which insulates the lower courts' "undisturbed findings" from our review when they are supported by the record (see, e.g., People v. Ferro, 63 N.Y.2d 316, 321, n. 2, 482 N.Y.S.2d 237, 472 N.E.2d 13; People v. Harrison, 57 N.Y.2d 470, 477, 457 N.Y.S.2d 199, 443 N.E.2d 447; see also, People v. Centano, 76 N.Y.2d 837, 840-841, 560...