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COURT OF APPEALS OF NEW YORK 1960.NY.42391 <>; 166 N.E.2d 831; 7 N.Y.2d 555 decided: April 1, 1960. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.PABLO VARGAS, APPELLANT Appeal from a judgment of the Court of General Sessions of New York County (Abraham N. Geller, J.), rendered January 23, 1959, upon a verdict convicting defendant of the crime of murder in the first degree. Counsel Thomas Grimes and Arthur H. Schwartz, for appellant. Frank S. Hogan, District Attorney (Richard G. Denzer of counsel), for respondent. Froessel, J. Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Foster concur. Author: Froessel

Appeal from a judgment of the Court of General Sessions of New York County (Abraham N. Geller, J.), rendered January 23, 1959, upon a verdict convicting defendant of the crime of murder in the first degree.

Froessel, J. Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Foster concur.

Author: Froessel

 Defendant, 33 years old, has been convicted of murder in the first degree and sentenced to death. His conviction rests largely on certain inculpatory admissions which he made to the police during the course of their investigation of the homicide. It is contended on this appeal that the judgment of conviction should be reversed on the grounds, among others, that the inculpatory admissions were involuntarily made and were untrue; that their admission in evidence violated defendant's rights under the Fourteenth Amendment of the United States Constitution; that the trial court erred in failing to charge that defendant's arraignment was illegally delayed; and that the jury's finding of guilt is against the weight of the evidence. The factual background and circumstances of this homicide, and the events which led to defendant's inculpatory statements to the police, are as follows:

The victim of this homicide was a 16-year-old girl, one Lillian Mojica. She died of strangulation but had also been raped, her scalp lacerated and her body scorched by fire. Her 15-year-old brother, Richard, discovered the body beneath a mattress in the basement of their home, located at West 187th Street in Manhattan, shortly after 3:00 p.m. on February 13, 1958.

At the time of the homicide, defendant was a roomer in the Mojica house. He worked as an assistant cook at the Jewish Memorial Hospital nearby on West 190th Street, which was 10 to 15 minutes' walking distance from the Mojica house. It is undisputed that, when Richard Mojica departed for school at 6:15 a.m. on the day of the murder, defendant was alone in the Mojica house with Lillian. She had locked the door as Richard left. Defendant was not seen that morning until about 9 o'clock when he appeared at the Jewish Memorial Hospital. That day, Thursday, was defendant's day off from work. He claimed to have received a telephone call before going to the hospital, in which the caller -- without asking his name or identifying herself -- merely directed him to "Report to work" and hung up the transmitter. Upon his arrival at the hospital, defendant was told that he had not been sent for. He thereupon went to a nearby bank to cash a check, and thence traveled to downtown Manhattan to visit his wife, from whom he was separated.

When defendant returned to the Mojica house at about 5 o'clock that afternoon, the police were at the scene. Between 6:00 and 7:00 p.m. the members of the Mojica household -- including defendant and two other roomers -- and a number of Lillian's acquaintances from the neighborhood were taken to the police station for questioning. These various people were seated in a large "squad room" on the second floor of the police station and were interrogated individually. Immediately adjacent to the squad room was a small room formed by metal partitions. That room was the office of Lieutenant Robb, who supervised the investigation, in which subsequent interrogations of defendant and others took place. The questioning of the numerous people brought to the station house continued until 4:00 a.m. on February 14th, at which time the first phase of the police investigation of the instant homicide was concluded.

Defendant was questioned for the first time, and briefly, about two hours after his arrival at the police station. He told of the telephone call directing him to report for work. Following his statement, defendant was placed in the main squad room with the other persons awaiting interrogation. Between 10:00 and 11:00 p.m., three police officers returned to the Mojica house and searched defendant's room. They found among his clothing a bathrobe with a bloodstain on the sleeve. The robe was taken to the police station, along with some other articles of clothing, and defendant was interrogated for the second time. This was about midnight. Defendant attributed the bloodstain to the fact that he frequently cut himself shaving. He had a bad acne condition. He also repeated the episode of the mysterious telephone call, stating that he received it at about 6:30 a.m. and arrived at the hospital at 7:00 a.m. This second interview by the police lasted from about an hour to an hour and a half, ending at approximately 1:00 a.m., at which time defendant returned to the squad room. According to Mrs. Mojica, he talked with her at about 3:00 a.m., and, after she told him the police were taking fingerprints "inch by inch", defendant replied that his fingerprints were "over all the house", and added "I'm not going to confess anything." At 4:00 a.m. Mrs. Mojica, her son Richard and defendant's half brother (Aponte) left the police station. Defendant remained in the main squad room and, commencing at about 5:00 a.m., Detective Waldron spoke with him generally until about 8:00 a.m. During this period, Waldron brought some coffee and pastry for defendant. In the meantime, the police had planned to check on his statements, and make a more complete examination of his room in daylight.

At about 10:00 a.m. that day, February 14th, two detectives went to the Jewish Memorial Hospital in order to ascertain the time at which defendant arrived there on the previous day; and, at the same time, Lieutenant Robb, accompanied by another police officer, returned to the Mojica house to conduct a more careful search of the premises. At the hospital, it was definitely learned that defendant had not arrived there until 9:00 a.m. on February 13th -- as opposed to 7:00 a.m. as claimed by him. At the Mojica house, additional bloodstains were discovered in defendant's room, on the floor and on the soles of a pair of damp slippers found underneath defendant's bed. A further bloodstain was subsequently discovered on defendant's bedspread.

Upon discovering the bloodstains, Lieutenant Robb returned to the station house, arriving there at about 11:30 a.m. Defendant was then sitting in the squad room, and Robb asked him to come into his office. Robb ordered a sandwich and coffee for defendant, which he ate, and then conferred with defendant alone. He told defendant at that time that the police had found bloodstains in his bedroom and blood on his bathrobe, and that it would be better for him if he would tell "in his own version what happened". Robb further told him "it could have been an accident, it might have happened to me or anyone", and urged him to "get it off" his "chest". After a pause, defendant said: "I pushed her"; and related in substance the following events.

On the previous morning, February 13th, defendant saw Lillian standing in the bathroom combing her hair. The bathroom was located on the second floor of the house, adjacent to defendant's room. Defendant became "excited", entered the bathroom through the open door and pushed her. She fell and her head started to bleed. Defendant then went to his bedroom to "think". He explained that he had blood on his hands and perhaps on his shoes at the time. This, according to defendant, accounted for the bloodstains on the floor of his room; and, as for the stains on his bathrobe, defendant stated: "I might have touched it when I went into the bedroom." Defendant then returned to the bathroom and dragged the girl down to the cellar, where he burned her clothes with matches.

When defendant concluded the foregoing statement, Lieutenant Robb called two other police officers into his office. Defendant repeated his original statement made to Robb and added some details, including the fact that he had raped the girl. Defendant denied strangling her, and declined to admit dragging her to the rear of the cellar where she was eventually found by her brother. He maintained that he left her at the foot of the cellar stairs. After having thus enlarged upon his first statement to Robb, defendant lowered himself to the floor at the request of the detectives present and demonstrated how he raped the deceased.

At about this time defendant's wife was in the squad room of the police station, having been brought there by the police. Defendant was permitted to speak to her. According to her testimony, defendant entered the squad room, embraced her, and protested: "These people are trying to blame on me a crime that I did not commit." Defendant was crying, she said, and told her that the police put a gun in his chest. She asked him what was wrong with his head, having apparently noticed what she described as an indication of a "beating" on his forehead. When asked by counsel for the defense whether this mark on his forehead was bleeding, Mrs. Vargas replied "Not too much".

After this alleged conversation with Mrs. Vargas, and at about 1:30 p.m., the police took defendant back to the Mojica house, where he re-enacted the events previously described to them. Defendant was then returned to the station house and sat on one of the desks. The police brought him a sandwich and coffee. At about 4:30 p.m. two Assistant District Attorneys arrived, and at 6:00 p.m. one of them took a statement from defendant which was recorded by a stenographer. During this interrogation defendant repudiated, in substance, his earlier admissions to the police. His frequent retort was that he was confused and nervous. In response to certain questions with regard to the admissions, defendant admitted making the statements but asserted that they were not true. He maintained that the police had told him what to say, and that he was struck.

Following the interview by the Assistant District Attorney, defendant was booked and taken downtown to the 30th Precinct station house at 152nd Street for overnight detention. On Saturday morning, February 15th, he was taken to the police "lineup" and photographed. From there defendant was taken to the District Attorney's office where he was briefly interrogated by an Assistant District Attorney, but this ...

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