Stanley C., Matter of

• Decision Date: 04 April 1986
• Citation: 116 A.D.2d 209,500 N.Y.S.2d 445
• Parties: In the Matter of STANLEY C.
• Court: New York Supreme Court — Appellate Division

Page 445

500 N.Y.S.2d 445

116 A.D.2d 209

In the Matter of STANLEY C.

Supreme Court, Appellate Division Fourth Department.

April 4, 1986.

Charles R. Valenza, Monroe Co. Atty., Rochester (Kenneth Fisher, of counsel), for appellant.

Charles O. Baisch, Rochester, law guardian for respondent.

Before DILLON, P.J., and DENMAN, BOOMER, PINE and SCHNEPP, JJ.

DENMAN, Justice.

In this juvenile delinquency proceeding, the County of Monroe appeals from an order of Monroe County Family Court, 120 Misc.2d 18, 465 N.Y.S.2d 449, which granted respondent's motion to suppress his oral and written statements to a Division for Youth Counselor and a Monroe County Deputy Sheriff. The statements were given in response to questioning of respondent Stanley C. upon his voluntary return to the State School at Industry after going AWOL. The delinquency petition is based on respondent's admission to certain acts committed by him after absconding from the facility which, if committed by an adult, would constitute the crimes of burglary in the second degree and grand larceny in the third degree.

Stanley C., born January 8, 1967, had been committed to Industry pursuant to a juvenile delinquency determination when, on December 3, 1982, he absconded. While AWOL he broke into a residence and stole cigarettes, liquor, jewelry, cash and clothing worth $1200. Subsequently, he stole a Jeep and later abandoned it after removing a shotgun, shells and an army coat from the vehicle. He met some friends, set out to hitchhike to Florida, changed his mind, and hitchiked to Buffalo. He stayed with friends in Buffalo and Batavia until December 29, 1982 when he decided to return to Industry. He telephoned his counselor David Pankratz, who met him at the bus station in Rochester and returned to Industry with him in a school van. Pankratz, who is not a peace officer and does not carry a weapon, did not give respondent the Miranda warnings and did not handcuff him. On the return trip, Pankratz and respondent discussed respondent's activities while he was AWOL and his motive for turning himself in. Pankratz informed respondent that he would have to take a statement from him, a standard procedure regarding a runaway. Upon returning to the facility, Pankratz interviewed respondent in an approved room for questioning a juvenile. Pankratz did not give respondent Miranda warnings and did not call his parents, who live in Schenectady. He did not promise respondent confidentiality, nor did respondent ask for it. After taking respondent's signed statement, Pankratz informed the facility's security arm of its contents.

Subsequently, Deputy Sheriff Joseph Bender, who was investigating the burglary and theft, questioned respondent and took a signed statement from him in the presence of a DFY aide, George Allen. This questioning also took place in an approved conference room at the facility. Neither Allen nor Bender called respondent's parents prior to the questioning. Bender advised respondent of his Miranda rights and the purpose of the conversation. Respondent indicated that he understood his rights. According to Bender and Allen, neither made any promises or threats to respondent. Bender told respondent only that he would not be removed from the facility that evening and that Bender himself had no authority to transfer him to jail or to the Children's Detention Center. Respondent first testified that Bender "guaranteed" him that he would not be removed from the facility if he told the Deputy "what went on," but subsequently testified that he asked Bender if he would be arrested based on the statements, that Bender made no promises in this regard, and that respondent in fact was not arrested following his statement. According to the deputy, the atmosphere during the questioning was very casual and respondent "readily" agreed to speak with him. Respondent was eventually transferred to a secure facility pursuant to regulations governing the return of AWOL juvenile delinquents.

In suppressing the statement made to the DFY counselor, Family Court held that the counselor was required to give respondent Miranda warnings before questioning him. We disagree. Miranda warnings are required to be given only in the context of custodial interrogation "by a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him" (see Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1144, 79 L.Ed.2d 409; Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694; CPL 60.45[2][b][ii] ). We conclude that respondent was not subjected to custodial interrogation by one engaged in law enforcement activity.

The determination as to whether one is in custody for Miranda purposes depends on whether he has been formally arrested or has had his freedom restricted to the degree associated with formal arrest (see Minnesota v. Murphy, supra, p. 430, 104 S.Ct. at 1144; Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 713, 50 L.Ed.2d 714). The test is whether a reasonable person, innocent of any crime, would have believed that he was in custody (see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89). Respondent certainly was not free to leave the facility; nevertheless, this restriction on his freedom was not due to the interrogation, but to the prior order of commitment. At the time of his statements to Pankratz, respondent had not been arrested by officials charged with the duty of apprehending criminals, but had voluntarily surrendered to the counselor (cf. People v. Ronald W., 24 N.Y.2d 732, 735, 302 N.Y.S.2d 260, 249 N.E.2d 882). The counselor is not a police officer or peace officer, is not engaged in law enforcement activity does not carry a gun, and has no authority to arrest or lay criminal charges (see Family Court Act § 305.2[1], [4][b]; [7]; CPL 60.45[2][b][ii] ). Rather, the counselor is a person primarily concerned with the "education and rehabilitation" of his charge (cf. People v. Ronald W., supra, p. 734, 302 N.Y.S.2d 260, 249 N.E.2d 882). The counselor conducted his questioning in an informal, nonthreatening setting which was familiar to the respondent and which had none of the earmarks of custodial coercion (see Minnesota v. Murphy, supra, p. 430, 104 S.Ct. at 1144; People v. Ronald W., supra, p. 734, 302 N.Y.S.2d 260, 249 N.E.2d 882). The questioning itself was not conducted in an effort to elicit incriminating responses to be used in a criminal prosecution, but constituted routine inquiries aimed at discovering the whereabouts and activities of the juvenile during his absence and determining his suitability for continued placement in the facility (see 9 NYCRR 181.10, 181.14). There is no indication that the counselor had been made aware of the burglary and robbery by police or that he was acting at their behest in questioning respondent. On the contrary, it is clear that the counselor was required by DFY regulations to conduct the inquiry and in fact did so for in-house purposes only, to determine if respondent was appropriate for transfer to a more secure facility (see 9 NYCRR 181.10, 181.14). On these facts, we conclude that the counselor was not required to give respondent Miranda warnings before questioning him. Analogously, the courts have held that Miranda warnings need not be given to probationers by probation authorities prior to routine questioning even though, technically, the probationer is required to appear for the interview and answer questions truthfully (see Minnesota v. Murphy, supra; People v. Ronald W., supra). The Court of Appeals has reached this conclusion notwithstanding its assumption that the probationer would be restrained from leaving the...