People v. W.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MUNDER
• Citation: People v. W., 31 A.D.2d 163, 295 N.Y.S.2d 767 (N.Y. App. Div. 1968)
• Decision Date: 16 December 1968
• Parties: The PEOPLE, etc., Respondent, v. Ronald W. (Anonymous), Appellant.

Page 767

295 N.Y.S.2d 767

31 A.D.2d 163

The PEOPLE, etc., Respondent, v. Ronald W. (Anonymous), Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 16, 1968.

James J. McDonough, Mineola (Matthew Muraskin, Mineola, of counsel), for appellant.

William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, of counsel), for respondent.

Before BELDOCK, P.J., and CHRIST, HOPKINS, MUNDER and MARTUSCELLO, JJ.

MUNDER, Justice.

On January 26, 1966 the defendant was indicted by a Nassau County Grand Jury for burglary in the third degree, grand larceny in the first degree, and possession of burglar's instruments as a misdemeanor. On September 1, 1966, on his plea of guilty, he was adjudged a youthful offender and was sentenced to Elmira Reception Centre for a term not to exceed three years, with execution of the sentence suspended and the defendant placed on probation. Subsequently an information was filed charging him with violation of probation. Following a hearing he was found to have violated his probation; and an amended judgment revoking probation and imposing the original sentence was rendered accordingly on August 25, 1967. It is from that judgment that the defendant now appeals.

The judgment appealed from was predicated on the testimony of William Marker, a probation officer and the sole witness at the hearing. He testified that on July 19, 1967 he saw the defendant at the Probation Department office in the company of another probationer, one Lawrence Miller, who had come to the office voluntarily to seek help for narcotics addiction. This was not on a day scheduled for one of the defendant's regular visits. When Marker noticed needle marks on the defendant's arm he led the defendant into the Deputy Director's office for questioning. The defendant was questioned by the Deputy Director in the presence of Marker, another probation officer, James Downey, and Lawrence Miller. When questioned, the defendant hesitated at first, but then stated that two days before he had injected himself with heroin which he had gotten 'somewhere in New York City with Lawrence Miller'. The defendant was never advised of any right he may have had to counsel; nor did he ask for the aid of an attorney. Part of the probation violation charge was based on the defendant's association with Miller, who was also a probationer and a known drug user.

The issues raised on this appeal are: (1) whether or not the defendant's constitutional rights were violated when he was not given the four-fold warning dictated by the ruling in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and (2) whether or not the People failed to establish the fact that the defendant had associated with persons of disreputable or harmful character.

With regard to the defendant's claim deprivation of his right to counsel, we consider the pivotal question here to be whether or not the defendant, at the time he was taken into the Deputy Director's office, was subjected to 'custodial interrogation'. The Court of Appeals has stated that 'an examination of the circumstances and the atmosphere in which the interrogation takes place is essential to a determination of whether a person, who has not actually been physically detained or formally...