People v. Smith

• Decision Date: 04 May 2006
• Docket Number: 16276.
• Citation: 29 A.D.3d 1035,2006 NY Slip Op 03480,814 N.Y.S.2d 360
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. PATRICIA SMITH, Respondent.
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 1035

814 N.Y.S.2d 360

2006 NY Slip Op 03480

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. PATRICIA SMITH, Respondent.

16276.

Appellate Division of the Supreme Court of the State of New York, Third Department.

May 4, 2006.

Appeal from an order of the County Court of Cortland County (Campbell, J.), entered February 28, 2005, which granted defendant's motion to suppress written and oral statements.

LAHTINEN, J.

This appeal involves whether certain statements made by defendant, a police officer in the Cortland County Sheriff's Department, to her supervisor were protected under the constitutional right against self-incrimination. Defendant's conduct following her investigation of a complaint regarding the alleged sale of a small amount of marihuana in September 2003 eventually resulted in a multicount indictment in April 2004 charging her with, among other things, falsifying business records, offering a false instrument for filing, and tampering with physical evidence. Defendant moved to suppress written and oral statements she gave to her supervisor in the Sheriff's Department when he inquired about her actions in handling the marihuana matter.

Evidence at the suppression hearing established that on September 1, 2003, defendant was dispatched to a local residence to investigate a complaint about the possible sale of marihuana, where she spoke to a couple of juveniles who had been approached by someone with marihuana, and she observed a substance left at the scene by the seller. She allegedly gathered the substance, but later discarded it because of the small quantity. On September 2, 2003, defendant's supervisor, Sergeant Herbert Barnhart, reviewed the dispatch complaint form that defendant had prepared and he noted several matters that caused him concern, including that an incident report had not been filed. Defendant was on vacation from September 2-6, 2003 and, during that time, Barnhart learned that defendant may have taken possession of some evidence at the scene and he was not able to determine what defendant did with that evidence. He notified an internal affairs officer of this.

According to Barnhart, he asked defendant when she returned to work on September 7, 2003 whether there was any evidence. She initially stated that there was not, but then indicated that there had been some ashes and an amount of a leafy green substance that was too small for her to secure. Barnhart stated that he was primarily interested in determining whether a case could still be made against the seller of the marihuana; he acknowledged that he was aware that defendant may have violated department procedures, but he claimed he had no belief at that time that defendant had committed a crime. He directed her to file the incident report that should have accompanied the initial paperwork regarding the marihuana investigation. She provided it to him shortly thereafter and, after reading it, he handed it back to her and indicated that she had failed to include in the report what she did with the evidence at the scene. Defendant revised the report and returned it to him.

Barnhart testified that he never stated to defendant that she would be fired if she did not answer his questions or provide the report. He acknowledged that he was defendant's supervisor and that it would be a violation of the department's policies for her to refuse his directive. He stated that there was a wide range of possible disciplinary actions for insubordination, including dismissal. Following the hearing, County Court determined that defendant's statements were made in response to inquiries from her supervisor that she was required to answer or face disciplinary action, including termination, and, therefore, the statements were not voluntary under Garrity v New Jersey (385 US 493 [1967]) and its progeny. The People appeal pursuant to CPL 450.20 (8).

A governmental entity "`may compel any person enjoying a public trust to account for his [or her] activities and may terminate his [or her] services if he [or she] refuses to answer relevant questions, or furnishes information indicating that he [or she] is no longer entitled to public confidence'" (Matter of Matt v Larocca, 71 NY2d 154, 159-160 [1987], cert denied 486 US 1007 [1988], quoting People v Avant, 33 NY2d 265, 271 [1973]). The state or municipality cannot, however, present the person with a choice of either making an unimmunized statement implicating criminal conduct or suffering a severe penalty such as termination. If a person faced with such a choice refuses to respond, the state cannot carry out its threatened penalty (see Lefkowitz v Turley, 414 US 70, 77 [1973]; Matter of Mountain v City of Schenectady, 100 AD2d 718 [1984], lvs dismissed 63 NY2d 603, 769 [1984], lv denied 64 NY2d 607 [1985]). If the person decides to talk, on the other hand, those coerced statements obtained under threat of removal from office cannot be used in any subsequent criminal proceedings against that person (see Garrity v New Jersey, supra at 500). Stated another way, "[u]nder both the State and Federal Constitutions, a statement made under threat of dismissal is protected by the privilege against self-incrimination and automatically immunized from use in criminal proceedings" (People v Corrigan, 80 NY2d 326, 329 [1992]).

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