Williams, In re

• Court: New York Family Court
• Writing for the Court: HUGH R. ELWYN
• Citation: 49 Misc.2d 154,267 N.Y.S.2d 91
• Parties: In the Matter of Peter WILLIAMS, a Person Alleged to be a Juvenile Delinquent. * Family Court, Ulster County
• Decision Date: 09 February 1966

Page 91

267 N.Y.S.2d 91 49 Misc.2d 154 In the Matter of Peter WILLIAMS, a Person Alleged to be a
Juvenile Delinquent. ^*
Family Court, Ulster County. Feb. 9, 1966.

Page 96

[49 Misc.2d 155] Arthur A. Davis, Jr., County Atty. (Richard W. Griggs, Port Ewen, of counsel), for petitioner.

Walter J. Kolody, for respondent.

HUGH R. ELWYN, Judge.

The petition of an officer of the New York State Police charges the respondent, a boy 15 years of age, with being a juvenile delinquent in that on or about the 15th day of August 1965 at about 9:15 P.M. he, in the company of another boy, age 16, broke and entered a cottage owned by Tamarack Lodge which was at the time occupied by a guest, stole jewelry valued at about $2,000 and that these acts of the respondent if done by an adult would constitute the crime of burglary in the third degree. The petition also contained three counts of other acts of the respondent in conjunction with the same 16 year old boy which if done by an adult would constitute the crime of burglary in the third degree, but since the evidence adduced at the trial related only to the first count the remaining three counts have, on consent of the petitioner, been dismissed.

The evidence produced by the petitioner to establish the respondent's complicity in the burglary may be summarized as follows: On the night of August 16th, 1965 at about 11:15-11:30 P.M. an employee of the New York State Department of Correction of the Eastern Correctional Institution at Napanoch, New York, but who at the time was employed as a security guard at the Tamarack Lodge, observed two boys lurking between two bungalows on Lodge premises. The guard started to approach the boys, but as he did so the boys disappeared behind another bungalow. As the boys ran past him, he started in pursuit and after a short chase apprehended them beyond a basketball court in the woods. He thereupon took the boys into custody and brought them to the Lodge

Page 97

office where one of the boys identified himself as the respondent, Peter Williams. The boys were held at the Lodge office for some little time without any charges being placed against them and then some time around midnight or shortly thereafter were turned over to the State Police.

So far as appears from the security guard's account of the incident neither of the boys had committed or attempted to commit any crime in his presence (Family Court Act 722; Code Criminal Procedure 183(1)), nor did he at any time inform them of the cause of their arrest (Family Court Act 723(a); Code Crim.Pro. 184). He did, however, comply substantially with the provisions of the Family Court Act and the Code of [49 Misc.2d 156] Criminal Procedure regarding the arrest by a private person without a warrant when 'without unnecessary delay' he 'deliver(ed) him to a peace officer' (Family Court Act 723; Code Crim.Pro. 185).

Upon being turned over to the custody of a uniformed trooper of the New York State Police the respondent and his companion were taken by police car to the Ellenville, New York Sub-station of the New York State Police ¹ for questioning. Up to this point there is no substantial variance in the several witnesses' account of what occurred. However, with the arrival of the respondent at the police station the stories of the respondent and the police differ sharply in two important details.

First, the respondent says that immediately upon arriving at the police station he asked to see a lawyer, but was told by the uniformed trooper, 'not now'. The Investigator for the Bureau of Criminal Investigation who interrogated the respondent about the burglaries at the Tamarack Lodge of which the police had received complaints denies that any such request to see a lawyer was made. While it appears, that at least so far as an adult is concerned, the failure of law enforcement officers to warn 'a person * * * taken into custody for questioning prior to his arraignment or indictment * * * of his privilege to remain silent and of his right to a lawyer even where it appears that such person has become the target of the investigation and stands in the shoes of an accused' would not 'render inadmissible inculpatory statements' thereby obtained (People v. Gunner, 15 N.Y.2d 226, 233, 257 N.Y.S.2d 924, 929, 205 N.E.2d 852, 855; People v. Jackson, 46 Misc.2d 742, 753, 262 N.Y.S.2d 907, 917) nevertheless, if the respondent did in fact make a request for counsel and his request was refused there is no doubt that any confession which the police thereafter obtained from him would be inadmissible (Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841,

Page 98

193 N.E.2d 628; People v. Failla, 14 N.Y.2d 178, 250 N.Y.S.2d 267, 199 N.E.2d 366; People v. Sanchez, 15 N.Y.2d 378, 259 N.Y.S.2d 409, 207 N.E.2d 356; People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852; People v. Friedlander, 16 N.Y.2d 248, 265 N.Y.S.2d 97, 212 N.E.2d 533). While all of these cases applied to confessions taken from adults after denial of access by counsel, there is no reason why the exclusionary rule they enforce should not be equally applicable to a juvenile, who, by reason of his immaturity, stands in much [49 Misc.2d 157] greater need of protection from unwarranted police interrogation than an adult.

Secondly, the investigator for the Bureau of Criminal Investigation who questioned the respondent at the police station testified that at first he found the boy to be unco-operative, but that later he became more cooperative and that after about a half hour of questioning he orally admitted his part in the burglary. The B.C.I. investigator explained the boy's change in attitude by saying that when he first saw the boy at about 12:45 A.M. he appeared to be drunk, but that upon being told that people could be produced who could identify him, he sobered up and, realizing the position he was in, offered to take the police to his bungalow where he had hidden a portion of the stolen jewelry. The respondent, on the other hand, denies that he had been drinking or that he was drunk and vigorously asserts that the confession that he gave was coerced. In fact, he claims he was struck about the left side of the face by the B.C.I. investigator sharply enough to cause his lip to bleed and he says that he thereafter confessed 'because I was scared and I thought I was gonna get beaten up'. The B.C.I. investigator emphatically denies having struck the boy at any time.

In any event, as the result of the questioning which commenced at about 12:45 A.D. and continued until about 1:15 A.M. the respondent admitted to the B.C.I. investigator that he and his companion had entered a bungalow at the Tamarack Lodge and that they had stolen jewelry and money; that after they had taken the jewelry they went to the woods and split it and that he had taken his part to the bungalow where he was staying. Having confessed to his participation in the burglary the respondent then offered to take the police to his bungalow where he had hidden the jewelry.

Accordingly, at about 2:00 A.M. the same morning the boy did accompany a uniformed state trooper to his bungalow where he produced from a dresser the stolen jewelry wrapped in a handkerchief. Upon recovering the stolen jewelry the trooper returned the boy to the police station, where after further questioning the boy's confession was reduced to writing and signed by him at about 4:30 A.M. At about 5:00 A.M. the boy was retunred to his bungalow and released to the custody of his 18 year old sister.

Page 99

The respondent contends that the boy's written confession taken from him at the police station at 4:30 A.M. after an unlawful arrest and detention is inadmissible and that the jewelry discovered in the respondent's bungalow is likewise inadmissible [49 Misc.2d 158] and should be suppressed inasmuch as it is the product of an unlawful search.

In support of his contention that the confession is inadmissible the respondent argues (1) that the petitioner has not complied with Section 813-f of the Code of Criminal Procedure which requires that 'where the people intend to offer a confession or admission in evidence upon a trial of a defendant, the people must, within a reasonable time before the commencement of the trial, give written notice of such intention to the defendant, or to his counsel if he is represented by counsel'; (2) that any statement made by the respondent during his detention by the police is within the proscription of Section 735 of the Family Court Act which makes inadmissible at a fact-finding hearing any statement made during a preliminary conference; (3) that the arrest made by the security guard was unlawful and that any statement given to the police after an unlawful arrest is inadmissible; (4) that the confession was taken after the boy had asked for and been refused access to counsel; (5) that the confession was coerced and involuntary and (6) that there was a total failure of the police to comply with the provisions of Section 724 of the Family Court Act which requires that upon taking a juvenile into custody 'the peace officer shall immediately notify the parent or other person legally responsible for his care, or the person with whom he is domiciled, that he has been taken into custody'.

The search of the respondent's bungalow for the missing jewelry, even though conducted at the respondent's invitation, is also claimed to have been unlawful, for concededly the police had no warrant and it is contended that the respondent, who was being illegally detained, could not by reason of his youth consent thereto. These several contentions will be dealt with in the order which they have been stated.

I Admissibility of the Confession

(1) The first point raised by the respondent; i. e. failure of the petitioner to give written notice to the respondent of an intention to offer the respondent's confession or...