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MATTER AARON D. (06/18/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1968.NY.42196 <http://www.versuslaw.com>; 290 N.Y.S.2d 935; 30 A.D.2d 183 June 18, 1968 IN THE MATTER OF AARON D., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, APPELLANT Appeal from an order of the Family Court, Bronx County (George A. Timone, J., at fact finding hearing; Joseph A. Doran, J., at disposition), entered March 21, 1967, which adjudged appellant to be a juvenile delinquent. Rena K. Uviller of counsel (Charles Schinitsky, attorney), for appellant. Raymond S. Hack of counsel (Stanley Buchsbaum) with him on the brief; J. Lee Rankin, Corporation Counsel), for respondent. Eager, J. Stevens, J. P., concurs with Eager, J.; Capozzoli, J., concurs in opinion; Steuer, J., dissents and votes to affirm in opinion in which Tilzer, J., concurs. Author: Eager


Appeal from an order of the Family Court, Bronx County (George A. Timone, J., at fact finding hearing; Joseph A. Doran, J., at disposition), entered March 21, 1967, which adjudged appellant to be a juvenile delinquent.

Eager, J. Stevens, J. P., concurs with Eager, J.; Capozzoli, J., concurs in opinion; Steuer, J., dissents and votes to affirm in opinion in which Tilzer, J., concurs.

Author: Eager

 This is an appeal from an order of the Family Court adjudicating the appellant (Aaron, D.) a juvenile delinquent. The order is based upon a finding that Aaron had committed an act which, if done by an adult, would constitute the crime of homicide, and upon a further finding that he requires supervision, confinement or treatment.

Aaron's participation in the alleged crime must be considered as disputed. There is no evidence that he was in any way involved in the alleged homicide other than his alleged inculpatory admissions to the police after he was taken into custody. The question presented on this appeal is whether the taking of the incriminatory statements by the police and their use against Aaron violated due process and statutory requirements. We conclude that there was such violation and that the order of the Family Court must be reversed.

The proceedings in relation to a charge of juvenile delinquency, "resulting as they do in a loss of personal freedom, are at the very least quasi-criminal in nature." (Matter of Gregory W., 19 N.Y.2d 55, 62. See, also, Matter of Gault, 387 U.S. 1; Matter of Whittington, 391 U.S. 341.) Consequently, the respondent in such a proceeding must be fully protected against involuntary self incrimination. If a statement or confession is to be used against him, there must be full compliance with due process requirements. (Matter of Gregory W., supra; Matter of Gault, supra.) These requirements include adequate notice to the child and his parents of the charges and of his rights.

It is noted that "special problems with respect to the privilege against self incrimination may arise in the case of juveniles and some difference in technique may be required, depending on the age of the child and the presence and competence of parents, as well as the participation of counsel. 'If counsel was not present for some permissible reason when an admission was obtained, 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' (Matter of Gault, supra, p. 55)." (Matter of William L., 29 A.D.2d 182, 184.)

Where the child is taken and detained in custody by police officers (see Family Ct. Act, §§ 721-729), the proper safeguarding of his privilege against self incrimination suggests that he should not be questioned until he and at least one of his parents are notified of his right to remain silent and of their right to counsel, with a further notification that counsel will be appointed if they are unable to afford a defense. If, after proper cautioning, the youth or his parent demands the assistance of counsel, he should be afforded such assistance. (See Matter of Gault, supra; Matter of William L., supra.) Here, there was a failure to comply with these safeguards and, as the undisputed facts will demonstrate, the police officers failed to exercise proper care to assure the voluntariness of Aaron's incriminating statements.

Aaron, who has just reached age 15, was taken from his home on January 19, 1967, by two police officers who informed his mother that he was involved in a stabbing. The mother, however, was not told that the police were investigating the boy's connection with the crimes of robbery and homicide, which was the fact, nor was she informed of the boy's right to remain silent and to have the benefit of counsel. The police merely told his mother "that she could come down to the station house, if she wished", and she requested the officers to call her when they got there. While Aaron was being transported by car to the station house in the company of the two officers, and without warning of his constitutional rights, he was questioned to some extent about the crime. Although he made no prejudicial admissions during the car ride, this was the inception of the "in custody" period prior to which Aaron and his mother should have been fully informed of his rights. On arrival at the station house, the boy was taken to the squad room preparatory to the obtaining of a statement from him. Aaron's mother was not immediately called but Aaron was informed that he had a right to remain silent, that anything he did say may be used against him in a court of law, that he had the right to have an attorney, that if he could not afford an attorney, the court would appoint one to represent him, and that he had a right to remain silent until he had an opportunity to consult with an attorney. In answer to the questions on the standard form, Aaron wrote that he understood these things and then, according to the testimony of an officer, he admitted his participation in the homicide and wrote a statement describing, in his own words, what had happened at the time of the incident. Thereafter, Aaron's mother was called but no statement was taken from Aaron after she arrived.

Under the circumstances, the cautioning of the juvenile and the taking of his statements at the station house, in the absence of his mother and counsel, do not satisfy due process requirements. The procedures of the officers, as mere token observance of such requirements, were not reasonably calculated to secure the voluntariness and the validity of the statements. Clearly, if we are to follow the reasoning of Gault (supra), including the decisions cited in that opinion (see pp. 51-57), and the decision of William L. (supra), Aaron's statements given to the police were not receivable as competent evidence in the fact-finding hearing. (See Family Ct. Act, § 744, subd. [a].) (See, also, Matter of Richard W., 29 A.D.2d 873.)

It is true that the proceedings in this case were completed prior to the Gault decision, and the Corporation Counsel insists that the rejection of Aaron's confession would amount to an unjustified retroactive application of such decision. But the proceedings here were subsequent to the decisions in Miranda v. Arizona (384 U.S. 436) and in Matter of Gregory W. (19 N.Y.2d 55), and a proper following of these decisions requires the exclusion of Aaron's statements. It was so held in Matter of William L. (supra), where Mr. Justice Hopkins stated (p. 185): " Gault was not an innovation but rather a confirmation of a rule which was in effect in New York at the time of the trial here. * * * No genuine question of retroactivity of Gault consequently emerges in this appeal."

Furthermore, the procedures used by the police were in violation of the provisions of section 724 of the Family Court Act. See Matter of Addison, 20 A.D.2d 90, 92.) Said section, insofar as applicable here, provides:

"(a) If a peace officer takes into custody * * * a person [under the age of sixteen] * * * the peace officer shall immediately notify the parent * * * that he has been taken into custody.

"(b) After making every reasonable effort to give notice under paragraph (a), the peace officer shall

"(i) release the child to the custody of his parent * * * upon the written promise * * * that he will produce the child before the family court in that county at ...


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