Stanley C., Matter of

• Decision Date: 30 June 1983
• Citation: 465 N.Y.S.2d 449,120 Misc.2d 18
• Parties: In the Matter of STANLEY C., A Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

Page 449

465 N.Y.S.2d 449

120 Misc.2d 18

In the Matter of STANLEY C., A Person Alleged to be a

Juvenile Delinquent, Respondent.

Family Court, Monroe County.

June 30, 1983.

Joseph Pilato, Asst. County Atty., Rochester, for petitioner.

Brian Strait, Buffalo, Law Guardian.

DECISION

ANTHONY F. BONADIO, Judge.

The respondent, charged with having committed acts which, if done by an adult, would constitute the crimes of Burglary, Second Degree (P.L. Section 140.25) and Grand Larceny, Third Degree (P.L. Section 155.30), moves to suppress (a) oral and written statements given to his Division For Youth (DFY) counselor, and (b) a written statement given to a Monroe County Deputy Sheriff. A hearing was held on the motion (People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179) at which the counselor (David Pankratz), Deputy Sheriff (Joseph Bender) and another DFY employee (George Allen) testified for the petitioner. The respondent testified, very briefly, on his own behalf. We find and decide as follows:

The petition and supporting depositions and the proof adduced at the hearing reveal that in December, 1982, the respondent was in the custody of the Division For Youth (DFY) pursuant to a Family Court placement on a prior delinquency petition (see Family Court Act Sections 753, 756; Executive Law, Article 19-G). On or about December 3, 1982, the respondent absconded from the DFY facility at Industry, New York. He remained absent and his whereabouts were unknown until December 29, 1982, when he telephoned the facility from Buffalo, New York, spoke with David Pankratz, his counselor, and advised him that he wanted to surrender. Pankratz suggested that the respondent take a bus to Rochester where he would pick him up. On December 30, 1982, Pankratz picked up the respondent as planned, and they drove back to Industry together in a van.

During the ride back, Pankratz advised the respondent-then 15 years of age-that he had to take a statement from him, and that it was "standard operating porcedure" to do so whenever a resident left the facility without permission (see, e.g., Executive Law Section 524; but cf. 9 NYCRR 181.7; Family Court Act Section 724). ¹ The respondent not only talked about his escape, but incriminated himself with respect to the crimes underlying the present petition. Petitioner concedes that Pankratz never gave the respondent any Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) warnings, but argues that Pankratz was under no duty to do so since he is neither a "police officer" or "peace officer" (CPL Sections 1.20(34), 1.20(33), 2.10; cf. Family Court Act Section 724), a "public servant engaged in law enforcement activity" or a person acting under the direction or in cooperation with such a public servant (CPL Sections 60.45, 710.20(3)).

Upon their arrival at Industry, Pankratz escorted the respondent to a conference room, ² where he reduced the latter's statement to writing and had it signed. Desirous of having this statement typed, Pankratz left it under an office door, from where it was eventually picked up and typed on December 31, 1982. ³

Later that same day--that is, on the evening of December 30, 1982--the respondent was again questioned about the crimes involved in the case at bar. This questioning, which also took place in the conference room, was conduct by Monroe County Deputy Sheriff Joseph Bender; George Allen, a youth aide at Industry, was also present. Bender had been investigating the burglary and larceny since December 4th, and was at Industry when Pankratz returned with the respondent. Bender testified that the respondent was a suspect in these crimes, and that he knew that the respondent had given Pankratz a statement. ⁴ Deputy Bender advised the respondent of his Miranda rights, which, petitioner claims, respondent "knowingly and intelligently waived" (cf. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527). Respondent made another damaging statement, which was also reduced to writing and signed (Petitioner's Ex. 2). Bender concedes that he made no effort to contact the respondent's parents before questioning commenced, and the Industry personnel made no such attempt either (see fn. 1; cf. Family Court Act Section 724).

Due process requires that "special considerations of care" be taken in the interrogation of juveniles (see, e.g., Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325; Mtr. of William L., 29 A.D.2d 182, 287 N.Y.S.2d 218). Where, as here, the juvenile is neither represented by an attorney nor able to secure the counsel and guidance of a parent or guardian

"the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights, or of adolescent fantasy, fright or despair" (footnote omitted; emphasis added). (In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527).

The warnings required by Miranda are intended to secure and safeguard an individual's privilege against self-incrimination. Miranda only applies, however, to "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" (Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, supra; cf. Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197; People v. Bodner, 75 A.D.2d 440, 430 N.Y.S.2d 433). Therefore, with respect to the statements given to Pankratz, we must determine (a) his status as a law enforcement officer for Miranda purposes, (b) the nature of the interrogation, and, should we conclude that the interrogation was custodial and Pankratz was acting as a law enforcement officer, (c) whether or not the respondent "knew the rights he was waiving" (Nettles v. State, 248 So.2d 259, 261 (Fla.App.), MANN, J. dissenting).

(1) Is Pankratz a public servant engaged in law enforcement activity?

The proof establishes that Mr. Pankratz is neither a police officer or peace officer as those terms are defined in the Criminal Procedure Law (see p. 450, supra ). He is, however, a public servant (Penal Law Section 10(15)), and the narrow issue to be resolved is whether or not his questioning of the respondent amounts to "official interrogation" by an agent of the State (see Estelle v. Smith, 451 U.S. 454, 467, 101 S.Ct. 1866, 1875, 68 L.Ed.2d 359; People v. Parker, 82 A.D.2d 661, 442 N.Y.S.2d 803, affd. 57 N.Y.2d 815, 455 N.Y.S.2d 600, 441 N.E.2d 1118).

Although we have been unable to locate a case in which suppression of a statement to a DFY counselor was sought, other cases involving analogous situations are instructive. ⁵ In People v. Parker, 82 A.D.2d 661, 442 N.Y.S.2d 803, affd. 57 N.Y.2d 815, 455 N.Y.S.2d 600, 441 N.E.2d 1118, supra, the Second Department (reversing Criminal Term, 101 Misc.2d 800, 421 N.Y.S.2d 561) rejected the People's argument that a parole officer is not engaged in law enforcement activity for Miranda purposes, and held that statements made by the defendant to his parole officer in the absence of such Miranda warnings are inadmissable at a subsequent criminal trial (see also People v. Ferguson, 90 Misc.2d 467, 395 N.Y.S.2d 330; People v. Moore, 79 A.D.2d 619, 433 N.Y.S.2d 473). This result is in accord with that of the majority of courts in other jurisdictions which have considered the issue (see Marrs v. State, 55 Md.App. 230, 452 A.2d 992 and the cases cited therein 452 A.2d at 994). ⁶

For purposes of our inquiry, Pankratz's relationship with the respondent is not substantially different-in kind or degree-from a parole officer's relationship with a parolee (cf. Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, supra ). Both must develop the confidence and trust of those under their care or supervision, and both are state employees who may owe their employer obligations which conflict with those of their charges (see Fare v. Michael C., supra, 442 U.S. at 720-721, 99 S.Ct. at 2569-70; People v. Parker, supra, 82 A.D.2d at 665-666, 442 N.Y.S.2d 803; cf. 9 NYCRR 171.10, 181.2, 181.8). As the court noted in Parker (82 A.D.2d at 667, 442 N.Y.S.2d 803):

"We think that not only should Miranda warnings have been administered under these circumstances, but also that the use of statements made by a parolee to his parole officer as evidence in a criminal trial against the parolee disrupts and destroys the confidence and trust which must inevitably inhere in the relations created by the parole system. The parole system presupposes the rehabilitation of the offender and must be built on the frank communication of advice and information between parolee and his supervisor, and that relationship will be damaged beyond repair if the indispensable pillar of candid exchange is undermined."

Similar concerns may be voiced about the use of statements by DFY counselors against juveniles in later delinquency proceedings. ⁷

(2) Was the interrogation custodial in nature?

Notwithstanding the presence of a few individual factors, which, in another context, might suggest that the questioning in the van was non-custodial in nature, the "totality of the circumstances" indicates otherwise. At a minimum the respondent, who had just surrendered himself to those charged with his care, was not free to leave (9 NYCRR 181.8; People v. Moore, 79 A.D.2d 619, 433 N.Y.S.2d 473, supra ).

(3) Did the respondent know the rights he was waiving?

There is nothing in the record indicating that the respondent "knowingly and intelligently" waived his rights prior to giving Pankratz a statement. Petitioner failed to prove that the respondent knew the nature of the rights he was not advised of but is claimed to have waived (see In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Matter of Karen XX, 85 A.D.2d 773, 445 N.Y.S.2d 283).

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