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PEOPLE STATE NEW YORK v. MARVIN KAYE (07/02/69)

COURT OF APPEALS OF NEW YORK 1969.NY.42434 <http://www.versuslaw.com>; 250 N.E.2d 329; 25 N.Y.2d 139 decided: July 2, 1969. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.MARVIN KAYE, APPELLANT People v. Kaye, 31 A.D.2d 536, affirmed. Counsel Gerald Zuckerman for appellant. Frank S. Hogan, District Attorney (Lewis R. Friedman and Michael R. Juviler of counsel), for respondent. Judges Scileppi, Bergan and Breitel concur with Judge Jasen; Chief Judge Fuld and Judge Burke dissent and vote to reverse and to suppress the oral confession on the ground that no statement made in the absence of counsel should have been used against defendant, whether spontaneous or not, once he had been arrested and taken into custody and his lawyer had informed the police that he had advised the defendant not to make any statements. (See People v. Vella, 21 N.Y.2d 249; People v. Arthur, 22 N.Y.2d 325.) Author: Jasen


People v. Kaye, 31 A.D.2d 536, affirmed.

Judges Scileppi, Bergan and Breitel concur with Judge Jasen; Chief Judge Fuld and Judge Burke dissent and vote to reverse and to suppress the oral confession on the ground that no statement made in the absence of counsel should have been used against defendant, whether spontaneous or not, once he had been arrested and taken into custody and his lawyer had informed the police that he had advised the defendant not to make any statements. (See People v. Vella, Author: Jasen

 This case presents the issue of whether spontaneous statements made to the police by a defendant who has been advised of his constitutional rights are rendered inadmissible solely because the defendant is in custody and represented by counsel who is not present when the statement is volunteered.

As the result of a telephone call received from defendant's attorney, two detectives went to the Stratford Arms Hotel at 117 West 70th Street in Manhattan shortly after midnight on July 6, 1965. There they discovered the body of a 13-year-old boy in defendant's room. Death had been caused by strangulation.

The detectives then proceeded to Bellevue Hospital in Manhattan where defendant's attorney and his father surrendered defendant to the officers. Defendant's attorney informed Detective McNally that he had counseled defendant concerning his constitutional rights, and had advised defendant not to make any statements. Detective McNally then inquired if the attorney desired to accompany defendant to the police station. After receiving assurances that his client would not be mistreated, defendant's attorney "stated that he did not think it was necessary; that it was getting late and he would see [Detective McNally] in court in the morning."

After informing defendant that he was being arrested "for the homicide of the boy that we found in the bed in 117 West 70th Street", the detectives placed him into their car to drive to the police station. Almost immediately after entering the car and without being asked a single question, defendant blurted out, "It's all a mistake, but I know he forgave me. He's in heaven now. It didn't have to happen. I'm sorry I ever met him in the village." The defendant repeated this statement several times and then began to discuss meeting the deceased. At this time Detective McNally informed defendant, "You know, you don't have to make any statements. Your lawyer has already apprised you of that fact." Defendant replied, "I have nothing to hide. It was all a mistake. I know I'm forgiven. I want to tell my side of the story, and I want to leave it up to the courts and doctors to decide." At the time defendant made this statement, the detectives had just started their car and defendant's attorney was standing within 30 feet of the police car.

Detective McNally then said to defendant, "If you don't mind telling us the story, why don't you tell us from the beginning." Defendant then related how he choked and beat the deceased 13-year-old boy to death. Following the death of the boy, defendant remained with the body for two days. Defendant then called his attorney, and was taken by his attorney to Bellevue Hospital where he was arrested. Detective McNally informed defendant three or four times during relation of the confession that defendant was entitled to the assistance of counsel and did not have to speak to the police. However, defendant insisted upon talking, replying, "I want to tell you everything." Defendant spontaneously repeated the confession five or six times. The only questions the detectives asked defendant during his narrative related to the times and dates of events which he had previously described.

After arriving at the 20th Precinct Station House, defendant was readvised of his constitutional rights, questioned, and amplified the confession previously given to the detectives in the police car.

A Huntley hearing was held to determine the voluntariness of defendant's confessions. The confession obtained from defendant after interrogation at the police station was suppressed because the police were aware that defendant was represented by counsel and questioned him in the absence of his attorney. However, the hearing Judge found that the earlier oral confession made by defendant in the police car was "a spontaneous reiteration of the facts impelled, probably, by his wanting to unburden his conscience", was not induced by any questioning and was volunteered after he had been advised of his constitutional rights.

During the voir dire examination of the jury, defendant was permitted to withdraw his plea of not guilty to a charge of first degree murder and allowed to plead guilty to manslaughter in the first degree. He was sentenced to imprisonment for a term of from 10 to 15 years.

The Appellate Division, First Department, affirmed defendant's conviction (31 A.D.2d 536) upon the ground that his confession was admissible as "a wholly voluntary statement not the product of questioning", citing People v. Torres (21 N.Y.2d 49, 54, 55).

Defendant does not dispute the fact that he was legally sane at the time of the crime and at trial. Defendant's police station confession was suppressed and is not in issue before this court.

The record amply supports the factual findings of the courts below that defendant volunteered the confession in the police car without interrogation after having been advised of his constitutional rights by his attorney and the detectives. The record indicates that defendant was rational and coherent at the time he volunteered this confession. (People v. Leonti, 18 N.Y.2d 384, cert. den. 389 U.S. 1007; People v. Stephen J. B., 23 N.Y.2d 611; People v. Dudley, 24 N.Y.2d 410.) Further, defendant had nine convictions at the time of his arrest in the instant case, and it must, therefore, be assumed that he was experienced in the workings of the law at that time.

The only issue before this court, therefore, is whether defendant's spontaneous oral confession must be suppressed, as a matter of law, solely because defendant was under arrest and represented by counsel at the time he volunteered his confession. Primarily relying upon People v. Vella (21 N.Y.2d 249) and People v. Arthur (22 N.Y.2d 325), defendant contends that once counsel enters the proceeding "no statements made by the accused can be used against him, albeit they are voluntary."

This court recently had occasion to pass upon the scope of a suspect's right to counsel in People v. McKie (25 N.Y.2d 19). The court stated that the right to counsel "[converges]" with the suspect's privilege against self incrimination which it is intended to protect during custodial interrogation. We held admissible an incriminatory statement made by McKie to police in the absence of his retained counsel who had previously directed the police not to question McKie because the suspect had not been subjected to "custodial interrogation" within the meaning of Miranda v. Arizona (384 U.S. 436). People v. Arthur (supra) and the case law from which Arthur sprang was summarized as follows: " Arthur simply recognized, as did the cases which came before it, that the criminal proceeding ...


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