People v. Walsh

• Decision Date: 18 March 1987
• Docket Number: L-5
• Citation: 514 N.Y.S.2d 174,134 Misc.2d 1071
• Parties: The PEOPLE of the State of New York v. Kenneth WALSH, Defendant
• Court: New York Supreme Court

Page 174

514 N.Y.S.2d 174

134 Misc.2d 1071

The PEOPLE of the State of New York v. Kenneth WALSH, Defendant.

Supreme Court, Queens County,

Criminal Term, Part L-5.

March 18, 1987.

Albert Swift, Flushing, for defendant.

John J. Santucci, Dist. Atty. (Joseph Brooking, Asst. Dist. Atty., of counsel), Kew Gardens, for People.

OPINION OF THE COURT

WILLIAM D. FRIEDMANN, Justice.

The 16 year old defendant, living in a home afflicted by alcoholic problems and showing early signs of such addiction, has been charged with Arson in the Third Degree (Penal Law § 150.10--"C" Felony) and Burglary in the Second Degree (Penal Law § 140.25--"C" Felony). Through a "Huntley-Dunaway" type motion (People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965]; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824), defendant challenges the voluntariness and acceptability of a statement made to a New York City Fire Marshal (Criminal Procedure Law § 60.45). Defendant relies upon three specific contentions:

1) his competence or capacity because of age, intelligence or experience to waive Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] ),

2) the propriety of the delivery of Miranda rights by the fire marshal,

3) the adequacy of non-verbal waiver responses thereto, and

4) the probable cause basis for the custodial interrogation by the fire marshal.

Capacity To Waive Miranda Rights As Effected By Age

The competence of an individual to effectively waive Miranda rights is tested by an overall consideration of the "totality of the circumstances" surrounding the waiver. (Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 [1979].)

While age, intelligence and educational level, life experience and social problems (here family alcoholic background), etc., are circumstances to be considered in determining an individual's competence or capacity to effectively waive Miranda rights, there appears to be no realistic evidence that the fire marshal here used any trickery, force, threats, promises or any form of coercion of any sort which would have made defendant's responsive statement to the fire marshal involuntary. Rather, the evidence adduced at the suppression or exclusion hearing seems convincing that there was no "improper conduct or undue pressure which impaired the defendant's physical or mental condition" (CPL § 60.45, subd. 2, par. [a] ). (People v. Yerdon, 51 A.D.2d 875, 380 N.Y.S.2d 141; People v. Dunbar, 71 A.D.2d 805, 419 N.Y.S.2d 356).

The evidence here establishes beyond a reasonable doubt that this 16 year old defendant voluntarily made the statement "I'm willing to talk. The fire was an accident", after adequate warnings communicated to him by the fire marshal and understood by him. (See, Juveniles' Capacity To Waive Miranda Rights: An Empirical Analysis, Thomas Grisso, 68 California Law Review 1134 [1980]; Juveniles' Waiver of Rights, Thomas Grisso, Plenum Press, N.Y. [1981]; and also see the comprehensive review of juvenile waiver in New York by Supreme Court Justice Eugene P. Bambrick in People v. Castro, 118 Misc.2d 868, 462 N.Y.S.2d 369 (Queens Co.1983).

Delivery of Miranda Warnings Not Flawed

The fire marshal at the exclusionary hearing could not identify which official fire department Miranda warnings form he had used when administering defendant his required rights.

The Court has now compared the two alternatives, the Miranda warning card and the Miranda warning sheet, both specifically prepared by the Bureau of Fire Investigations, Fire Department, City of New York, for the assistance of its fire marshals in their administration of Miranda warnings. They are similar in all respects except one. The card covers six warnings, while the sheet covers the same standard six warnings plus a seventh which says: "3. If you do give a statement, you can stop at any time or not answer any questions you do not wish to answer. Do you understand?, subject replied".

With respect to the wording and format of Miranda warnings, our courts have permitted great leeway in relating the essentials of the Miranda warnings to a suspect. The thrust of cases speaking on the subject has been to emphasize substance over form, and clearly avoid any kind of an unrealistic interpretation of Miranda based on technical grounds, when the underlying statement, admission or confession, may be otherwise reliable and voluntary. (California v. Prysock, 451 U.S. 1301, 101 S.Ct. 1773, 68 L.Ed.2d 185 [1981].)

In finding that the delivery of Miranda warnings here were not flawed, it may be helpful to revisit Miranda and restate what the Supreme Court stated with respect to the substantive content of required warnings:

"Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (384 U.S. 436 at 444, 86 S.Ct. 1602 at 1612, 16 L.Ed. 694 at 706-707)

Non-Verbal Nods By Defendant--As Communicating Understanding

And As An Effective Waiver of Miranda Rights

The fire marshal indicated that defendant during the administrati of his warnings did not respond orally, until the very end, as he read to him from one of the two...