People v. Wilhelm

• Decision Date: 24 August 2006
• Docket Number: 15092.
• Citation: 34 A.D.3d 40,2006 NY Slip Op 06296,822 N.Y.S.2d 786
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHRISTINE A. WILHELM, Appellant.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 40

822 N.Y.S.2d 786

2006 NY Slip Op 06296

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHRISTINE A. WILHELM, Appellant.

15092.

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

August 24, 2006.

Jerome K. Frost, Public Defender, Troy, for appellant.

Patricia A. DeAngelis, District Attorney, Troy (Jennifer C. Shatz of counsel), for respondent.

OPINION OF THE COURT

MERCURE, J.P.

In September 2001, defendant was diagnosed with a psychotic disorder, a condition that caused her to fear that her husband belonged to a cult and planned to torture or murder their two sons, Peter and Luke (born respectively in 1996 and 1998). She was hospitalized twice and prescribed various medications, which she periodically stopped taking due to unpleasant side effects. On the early evening of April 15, 2002, she had been off her medication for approximately a month when she tied a dog leash around five-year-old Peter's feet and lowered his head into a bathtub filled with water. When Peter struggled and asked her to stop, she pulled him from the water, apologized and helped both of the children dress in pajamas. Defendant's parents telephoned her and, after defendant described her attempt to drown Peter, she reassured them that she would call the police. Defendant did not call the police, however, because her parents evidently informed her that her husband would get custody of the children if she did so.

Instead, defendant carried four-year-old Luke, who had fallen asleep, to the bathtub and placed him under the water. When he struggled, defendant pulled Luke from the tub, resuscitated him and placed him back in bed with Peter. After lying down with both boys for a time, defendant observed that Luke's breathing was labored and that his stomach was hot. She then told him that she would "go to jail for [him]," took him back to the bathroom and placed him face up beneath the water in the tub, holding him down until he stopped struggling. She called 911 and informed the dispatcher that she had killed her son.

Officer Anthony Silvestro, the first police officer on the scene, arrived at defendant's home at approximately 2:00 A.M. on April 16, 2002. Defendant informed Silvestro that she had killed her son and that the death was a "mercy killing." She showed Silvestro the body in the tub and told him that Luke had died 20 minutes earlier. Silvestro placed defendant under arrest, handcuffing her and putting her in the back of his police car. He then went to find Peter, who was still sleeping. Upon awakening, Peter told Silvestro that "Mommy drowned me," and described the earlier incident with the leash. Peter also mentioned his brother and told the officer that defendant had drowned Luke. After separate rescue squads took Luke and Peter from the house, Silvestro read defendant her Miranda rights, to which defendant responded that she had killed her son but would not speak further without a lawyer.

Thereafter, Silvestro drove defendant to the Village of Hoosick Falls Police Department, where she was placed in a holding cell at approximately 4:30 A.M. Two hours later, she was interviewed by two police investigators regarding whether her husband was responsible for signs of suspected sexual abuse found on Luke's body. Although the investigators informed defendant that they did not wish to discuss Luke's drowning, defendant informed them that the incident was "an act of mercy" because her husband was sexually abusing the children.¹ Later that morning, defendant was placed on active supervision because she was considered to be suicidal and was briefly monitored by the prosecutor while she used the bathroom. She was also supervised by a police matron, Catherine Duket, to whom she confessed to killing Luke. Following her arraignment at approximately 2:00 P.M., defendant was interviewed by Casi Maloney and Kathleen McGarry, caseworkers from Child Protective Services (hereinafter CPS), who were investigating a hotline report regarding her abuse of Peter and Luke. In describing the incident to the CPS caseworkers, defendant stated, among other things, that she initially pulled Luke out of the bathtub and resuscitated him because she knew that what she was doing was wrong. Defendant also informed the CPS caseworkers that she had brought the children into her relationship with her husband and that she needed to fix the situation "by taking care of it, meaning drowning the kids." It is undisputed that the People did not provide notice pursuant to CPL 710.30 of their intent to offer evidence of defendant's statements at trial.

On April 19, 2002, defendant was charged in an indictment with three counts of murder in the second degree and one count of attempted murder in the second degree. She served a notice of intent to offer psychiatric evidence at trial, intending to show that she lacked responsibility for her crimes because she was insane at the time they were committed. County Court denied defendant's subsequent motions to suppress her admissions to Duket, to preclude her statements to the CPS caseworkers and for a mistrial, and quashed her subpoena to call the prosecutor as a witness. Following trial, a jury found defendant guilty of one count of murder in the second degree and one count of attempted murder in the second degree, rejecting her insanity defense. County Court sentenced her to an aggregate prison term of 50 years to life and defendant now appeals. Because we conclude that defendant's statements to the CPS caseworkers were admitted in violation both of her right to counsel and CPL 710.30, and the error cannot be said to be harmless under the circumstances presented here, we now reverse and remit the matter for a new trial.

Pursuant to CPL 710.30, "the People must give notice to the defendant whenever they `intend to offer at a trial ... evidence of a statement made by a defendant to a public servant' which would be suppressible if involuntarily made" (People v Chase, 85 NY2d 493, 499-500 [1995], quoting CPL 710.30 [1] [a]). The central purpose of the statute "is to inform a defendant that the People intend to offer evidence of a statement to a public officer at trial so that a timely motion to suppress the evidence may be made" (People v Rodney, 85 NY2d 289, 291-292 [1995]; see People v O'Doherty, 70 NY2d 479, 488 [1987]; People v Briggs, 38 NY2d 319, 322-323 [1975]). An admission or statement by a defendant regarding his or her participation in the charged offense is suppressible—and therefore subject to the notice requirement of CPL 710.30—if it is "involuntarily made," as defined in CPL 60.45 (1) (see CPL 710.20 [3]). As relevant here, that statute provides that

"[a] confession, admission or other statement is `involuntarily made' by a defendant when it is obtained from him [or her] ... [b]y a public servant engaged in law enforcement activity or by a person then acting under his [or her] direction or in cooperation with him [or her] ... in violation of such rights as the defendant may derive from the constitution of this state or the United States" (CPL 60.45 [2] [b] [ii]). Hence, it has long been held that CPL 710.30 notice need not be given where the statement to be offered at trial was made to an individual who is "neither a public servant nor acting as an agent of law enforcement authorities" (People v Rodriguez, 114 AD2d 525, 526 [1985], lv denied 66 NY2d 1043 [1985]; see e.g. People v Johnson, 303 AD2d 830, 833-834 [2003], lvs denied 99 NY2d 655 [2003], 100 NY2d 583 [2003]; People v Batista, 277 AD2d 141, 142-143 [2000], lv denied 96 NY2d 825 [2001]; People v Quinto, 245 AD2d 121, 121 [1997]; see also People v Mirenda, 23 NY2d 439, 448-449 [1969]; People v Miller, 142 AD2d 760, 761 [1988]).

In determining whether defendant was entitled to pretrial notice under CPL 710.30 (1) so that she could seek suppression in this case, we must evaluate the notice requirement in light of defendant's assertion that the statements to the CPS caseworkers were obtained in violation of her constitutional rights (see CPL 60.45 [2]; People v Rodney, supra at 292), specifically her claim that her right to counsel was violated. The People concede that defendant's right to counsel had indelibly attached prior to the interview by the CPS caseworkers (see People v West, 81 NY2d 370, 373-374 [1993]; People v Samuels, 49 NY2d 218, 221 [1980]) and that because defendant was represented by counsel, she could waive that right only in the presence of counsel (see People v Settles, 46 NY2d 154, 165-166 [1978]). In addition, as defendant asserts, because her right to counsel had attached, any statements obtained "through interrogation by agents of the [s]tate" must be suppressed (People v Velasquez, 68 NY2d 533, 537 [1986]; see People v Knapp, 57 NY2d 161, 173-174 [1982], cert denied 462 US 1106 [1983]).² There is no dispute that defendant's statements to the CPS caseworkers were not spontaneous but, instead, the result of the caseworkers' interview. Thus, the question before us turns on whether defendant's statements to the CPS caseworkers were involuntary because they were the product of interrogation by "public servant[s] engaged in law enforcement activity or by a person then acting under [their] direction or in cooperation with [them]" (CPL 60.45 [2] [b]; see People v Greene, 306 AD2d 639, 640-641 [2003], lv denied 100 NY2d 594 [2003]).

In that vein, it is well settled that interrogation by agents of the state "includes not only formal questioning by the police or prosecutor, but also more subtle forms of [s]tate inducement to make incriminating statements" (People v Velasquez, supra at 537; see People v Maerling, 46 NY2d 289, 302-303 [1978]). Moreover, the state may not defeat a defendant's constitutional right to counsel by claiming that only private acts were involved "when government officers, subject to constitutional limitations, have participated in the act" (People v Jones, 47 NY2d...