People v. Whitmore

• Decision Date: 18 November 2004
• Docket Number: 14716.,13062.
• Citation: 12 A.D.3d 845,2004 NY Slip Op 08268,785 N.Y.S.2d 140
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES WHITMORE, Appellant.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 845

785 N.Y.S.2d 140

2004 NY Slip Op 08268

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES WHITMORE, Appellant.

14716.

13062.

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

November 18, 2004.

Appeals (1) from a judgment of the County Court of Broome County (Smith, J.), rendered April 11, 2001, upon a verdict convicting defendant of the crimes of sodomy in the first degree and endangering the welfare of a child, and (2) by permission, from an order of said court, entered April 18, 2003, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Kane, J.

After defendant's girlfriend reported that defendant had engaged in a sexual act with her five-year-old daughter, the police questioned defendant and obtained an oral and written statement in which he confessed to having the victim perform oral sex on him. County Court denied defendant's motion to suppress the statements. A jury convicted defendant of sodomy in the first degree and endangering the welfare of a child. The court sentenced defendant to concurrent terms of one year in jail for endangering the welfare of a child and 18 years in prison for sodomy. Defendant moved pursuant to CPL 440.10 to vacate the judgment based on newly discovered evidence and ineffective assistance of counsel. The court denied the motion without a hearing. Defendant appeals from his conviction and denial of his CPL 440.10 motion. We affirm.

Defendant first contends that County Court erred when it granted the People's request to reopen the suppression hearing. Very little time had elapsed between the conclusion of the hearing and the People's request, the court had not yet reached its decision on the motion, and the People's additional evidence was submitted as rebuttal to defendant's testimony that his statements were involuntary because he was under the influence of prescription medication at the time. Under these circumstances, the court did not abuse its discretion in reopening the hearing (see People v Hernandez, 124 AD2d 893 [1986]; see also People v Widgeon, 303 AD2d 330, 330 [2003]; People v Somerville, 283 AD2d 596 [2001], lv denied 96 NY2d 942 [2001]).

Defendant next contends that his statements to a Department of Social Services (hereinafter DSS) child protective caseworker should have been excluded because they were obtained in violation of his right to counsel and the People failed to provide notice of such statements pursuant to CPL 710.30. Although defendant's right to counsel had attached when he spoke to the caseworker, that right was only violated if statements were taken by the police or agents of the police. This Court has previously stated that "social workers are generally not agents of the police," although they may be considered agents under certain circumstances (People v Greene, 306 AD2d 639, 641 [2003], lv denied 100 NY2d 594 [2003]). While the caseworker here coordinated with police detectives regarding the interview of the child victim, the caseworker conducted her jailhouse interview of defendant without any police involvement. As the caseworker had no agency relationship with the police, defendant's right to counsel was not implicated (see People v Ray, 65 NY2d 282, 286 [1985]).

Nevertheless, the statement to the caseworker should have been excluded because defendant was entitled to notice pursuant to CPL 710.30. That statute requires the People to provide notice of any "statement made by a defendant to a public servant" which will be offered at trial (CPL 710.30 [1] [a]). Although the term "public servant" is not defined in the CPL, the Legislature's definition of that term in the Penal Law is instructive. Penal Law § 10.00 (15) broadly defines the term to include "any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state." This definition also comports with a common sense understanding of "public servant," and seems to include a DSS caseworker. While the Court of Appeals previously held that a notice of intention to introduce a statement made to a public social worker need not be provided ahead of time to an alleged juvenile delinquent, that decision was based on notice provisions in the Family Ct Act and their correlation to language in, and the legislative history of, a different statute, CPL 710.20 (see Matter of Luis M., 83 NY2d 226 [1994]).

The present case is also distinguishable from statements to private parties, where the issue is whether the individuals are agents of the police, not whether those individuals are public servants (compare People v Mirenda, 23 NY2d 439, 448-449 [1969]). Because the...