People v. Smith

• Decision Date: 12 June 1984
• Citation: 465 N.E.2d 336,476 N.Y.S.2d 797,62 N.Y.2d 306
• Parties: , 465 N.E.2d 336 The PEOPLE of the State of New York, Respondent, v. Roger C. SMITH, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 797

476 N.Y.S.2d 797

62 N.Y.2d 306, 465 N.E.2d 336

The PEOPLE of the State of New York, Respondent, v. Roger C. SMITH, Appellant.

Court of Appeals of New York.

June 12, 1984.

James F. Greenwald, Syracuse, for appellant.

Richard A. Hennessy, Jr., Dist. Atty., Syracuse (John A. Cirando and Michael P. Marmor, Syracuse, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

A child abuse or neglect proceeding under article 10 of the Family Court Act is a civil proceeding for the protection of the child alleged to be abused or neglected. Notwithstanding the requirement of section 262 of the Family Court Act that when the person named in such a petition first appears in court the Judge shall before proceeding advise him or her of the right to counsel, the filing of such a petition is neither the initiation of a criminal proceeding nor such significant judicial activity in relation to a criminal proceeding as will trigger the person's right to counsel with respect to a criminal charge arising from the same facts. When interrogated by police investigating the potential criminal charges, such a person may waive the right to counsel in the absence of counsel, provided that Miranda warnings, if required by the circumstances of the interrogation, are properly given and that the person has not in fact retained counsel in relation to the neglect proceeding. The order of the County Court should, therefore, be affirmed. 119 Misc.2d 717, 464 N.Y.S.2d 344.

I

On October 19, 1982, Donald Corey, stepson of defendant, Roger Smith, and son of Sarah Smith, was removed from the Smith home under an order signed by a Judge of the Family Court, Onondaga County, and placed in the temporary custody of the Department of Social Services, Children's Division, a child protective agency of the State. The order appears to have been based upon a visit to the Smith home by persons from the Child Protection Division and a policeman on October 18, 1982, during which bruises were observed on Donald's buttocks. On October 20, 1982, a summons was issued requiring Roger Smith to show cause in Family Court on October 27, 1982 why Donald should not be adjudicated a neglected child and Roger Smith should not be dealt with in accordance with article 10 of the Family Court Act, and a neglect petition was filed alleging that Roger Smith had beaten Donald Corey on and about the buttocks, with his hand and a belt, causing numerous bruises. On October 21, 1982, Investigator Scott Dunseath of the Syracuse Police Department's Child Abuse Unit, having been called to the foster home in which Donald had been placed by Child Protective Services, first interviewed Donald and then proceeded to the Smith home.

Roger Smith not being at home, Investigator Dunseath left his card. Before returning Dunseath's call, Smith called Carolina Miccio, a family counselor in the employ of the county (but having no relation with the Family Court or the Police Department), with whom both parents had previously consulted. Ms. Miccio was present during Officer Dunseath's interview of Roger Smith and testified that she had told him to tell the truth and went over the statement with him to be sure he understood it. Although Smith was not then in custody, Miranda warnings were administered to him and he stated that he understood them and was willing to make a statement without an attorney. A statement was then taken by Dunseath in affidavit form, signed by Smith and witnessed by Miccio, in which Smith admitted that on October 13, 1982, he had spanked Donald because he wet himself, but did not think he had done so hard enough to cause bruises, although he admitted seeing a bruise like a handprint on Donald's buttocks on October 18. After making the statement Smith was charged with assault, third degree, and served with an appearance ticket returnable in the Criminal Division of Syracuse City Court on October 28, 1982.

After a hearing on Smith's motion to suppress, City Court found the statement to have been made voluntarily but nevertheless granted the motion to suppress, holding the Family Court proceeding and the criminal investigation and charge so interrelated that defendant Smith could not be questioned without counsel once the "accusatory step" of the Family Court proceeding had been taken.

On appeal to the County Court, that court agreed that the statement had been voluntarily made, but reversed on the law and the facts and remitted the matter for trial. It held that the Family Court proceeding being civil in nature, the criminal proceeding not having commenced at the time Smith was questioned, Smith not having at that time obtained counsel in the Family Court proceeding, and Miranda warnings having been administered and understood, there was no violation of defendant Smith's right to counsel. The matter is before us by leave of a Judge of this court. We agree with County Court that there was no violation of Smith's right to counsel and, therefore, affirm its order.

II

Indelibly clear from the provisions of article 10 of the Family Court Act are the separate and civil nature of proceedings under that article. Section 1011 declares the purpose of the article to be "to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being" as well as to determine "when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met." (Emphasis supplied.) Subdivision (b) of section 1013 declares that, "For the protection of children, the family court has jurisdiction over proceedings under this article notwithstanding the fact that a criminal court also has or may be exercising jurisdiction over the facts alleged in the petition or complaint." Subdivisions (a) and (b) of section 1014 permit the transfer of a Family Court proceeding to an appropriate criminal court and the transfer of a criminal complaint to the Family Court, subdivision (c) of that section states explicitly that, "Nothing in this article shall be interpreted to preclude concurrent proceedings in the family court and a criminal court", and subdivision (d) permits the Family Court in a hearing under the section to grant only use immunity to the respondent or potential respondent (see Matter of Vance A., 105 Misc.2d 254, 432 N.Y.S.2d 137), rather than the transactional immunity which under CPL article 50 may be granted by the court in a criminal proceeding. ¹

The recognition in section 262 of the Family Court Act of the right to counsel of the respondent in an article 10 proceeding does not alter the situation. It is, rather, a recognition that due process and equal protection require the assistance of counsel when rights and interests as fundamental as those involved in the parent-child relationship are at stake (Matter of Ella B., 30 N.Y.2d 352, 356-357, 334 N.Y.S.2d 133, 285 N.E.2d 288). True, both the opinion in Ella B. (id., at p. 356, 334 N.Y.S.2d 133, 285 N.E.2d 288) and section 261 of the Family Court Act refer to "the possibility of criminal charges," but section 262 speaks only to the right to counsel in Family Court proceedings and, although the right to assignment of counsel recognized in Ella B. has since January 1, 1976 been incorporated in its provisions, nothing in it, or elsewhere in the Family Court Act, suggests a legislative intent to impose a statutory requirement that counsel be provided prior to respondent's appearance in the Family Court proceeding or to affect the investigatory process related to criminal charges arising out of the same facts.

III

Defendant fares no better when the matter is examined in light of the right to counsel contained in section 6 of article I of the State Constitution. He does not contend that he did not receive or understand Miranda warnings. ² Both courts below have, moreover, found his statement to have been given voluntarily, which puts that issue beyond our review, there being support in the record for such a finding (People v. Hopkins, 58 N.Y.2d 1079, 462 N.Y.S.2d 639, 449 N.E.2d 419). His rights under our Constitution have not been violated, therefore, unless when the statement was taken his right to counsel in the criminal proceeding had attached and could not be waived in the absence of counsel.

Although Investigator Dunseath concededly was aware of the Family Court proceeding at the time he took defendant's statement, it is also conceded by defendant that at that time he had not appeared at Family Court and had no attorney, retained or assigned, in relation to that proceeding. This is not a matter, therefore, such as People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501 and People v. Steele, 113 Misc.2d 658, 449 N.Y.S.2d 562, in which the police questioned a suspect not in custody about an investigation in relation to which the police were aware that he had counsel. It is, rather, closer to People v. Kazmarick, 52 N.Y.2d 322, 438 N.Y.S.2d 247, 420 N.E.2d 45, in which we held that police knowledge of a pending separate proceeding against the person questioned cannot charge them with any more information than would have been revealed had the police made reasonable inquiry concerning whether the person in fact had counsel on the separate charge.

Defendant would distinguish Kazmarick, as did the City Court Judge, on the ground that it concerned an unrelated charge, whereas in the present case the criminal charge and the Family Court proceeding arise from the same facts and are not only related but "inextricably interwoven." The quoted phrase comes from People v. Townes, 41 N.Y.2d 97, 104, 390 N.Y.S.2d 893, 359 N.E.2d 402, which involved a defendant interviewed in a detention facility where he was being held on a criminal charge on which he had been arraigned and indicted and for which he had been assigned counsel. The related proceeding there involved was defendant's police...