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MATTER JOSEPH S (12/23/69)

FAMILY COURT OF NEW YORK, JUVENILE TERM, NEW YORK COUNTY 1969.NY.44079 <>; 308 N.Y.S.2d 943; 62 Misc. 2d 329 December 23, 1969 IN THE MATTER OF JOSEPH S,*FN* J. Lee Rankin, Corporation Counsel (Jerome Hornblass of counsel), for petitioner. Albert Angeloro for respondent. Ralph E. Cory, J. Author: Cory

Ralph E. Cory, J.

Author: Cory

 The respondent, Joseph S., 13, is charged with assaulting, on or about 11:45 p.m. on August 18, 1969, one Edward B., 52, in a basement apartment at 218 West 141st St., New York City by striking him on the head with a cane. The respondent is further charged with causing the death of Frank H., age 55, by placing and manipulating a rope round his neck.

On consent of the attorneys, the medical examiner's report and autopsy were accepted into evidence and a stipulation entered into by both counsel that the cause of death of Frank H. was due to "strangulation by rope with fracture of the Larynx, Homicidal", without the necessity of having the medical examiner present for cross-examination.

The petitioner is the detective with the Police Department, who placed the respondent under arrest on August 19, 1969 after the police investigation and interrogation of the respondent and several other persons had been completed, for committing acts, which if done by an adult would constitute the crime or crimes of assault and homicide, in accordance with the provisions of article 7 of the Family Court Act.

Undisputed testimony contained in the following brief summary of the facts, not contradicted by the respondent, who did not take the stand, or his witnesses (his mother and 17-year-old sister), and based on the credible evidence of all the witnesses on direct, cross-examination and redirect, is substantially as follows:

The respondent was in the basement apartment when the police arrived in answer to a call about a dead man at the premises in question around 11:45 p.m. on the night of August 18, 1969. The police had been summoned by a friend of the respondent's mother after respondent had told her that he had found a dead body at 218 West 141st Street. The respondent had also informed his mother and sister several hours earlier of this occurrence. At their request, respondent returned home a short time later, where the matter was discussed with his mother and older brother, who admonished him to remain in the house. The respondent refused and returned to the basement apartment where he was found by the police, along with the unidentified male, black, age 19, later identified as Charles H.; Edward B. the victim of the assault, who was asleep; and the deceased Frank H. in the rear bedroom. Edward B. had been hired by one Pearl H., the owner of the apartment building to be the superintendent, since her husband had died several months earlier. The respondent had been taking guitar lessons from Pearl H.'s deceased husband. On the fateful day in question, Pearl H. had promised to give Joseph S. her husband's guitar, which he was to pick up that evening when she returned from Brooklyn with it. Pearl H., a cousin of the deceased, identified the body for the police.

The respondent and the other boy known as Charles H. left the apartment around 12 midnight. When the policeman came out of the apartment at 2:30 a.m. on August 19, 1969 after completing his initial investigation, the respondent was sitting on the front stoop. Joseph S. approached the officer and said he wished to speak to him. The respondent then told the police officer voluntarily that he had seen two boys come into the apartment and strangle the deceased with a rope around his neck. The respondent demonstrated by showing the officer the rope which was under a pile of clothes on the bed where the deceased lay face up. The patrolman asked the respondent to accompany him to the police station. He did so voluntarily and there told the detectives the same story. The respondent was not a suspect at this time and the patrolman was instructed to take Joseph S. to his home and advise his mother that he was a witness to a homicide.

Mrs. S. was informed and, accompanied by her daughter, was taken to the police station. William C., Charles H., and Pearl H. were also taken to the police station at this time. The police officer had a difficult time arousing Edward B., the victim of the assault, who was first taken to the emergency room of the hospital for treatment where he was found to have a head wound in the middle of the scalp, no hair at the place of the wound, and blood on his shirt. Edward B. was subsequently taken to the police station. In the course of the police investigation, the respondent told the officer that one Rodney R. had forced him to strangle the deceased, after telling him to only tighten the rope to scare the deceased. The police immediately checked their criminal files and found a picture of Rodney R., 24, male, Negro, which they showed to the respondent who stated that that was the man that forced him to strangle the deceased. The police immediately visited the home of Rodney R. where they were informed by Rodney's mother that her son had been confined in Auburn State Prison for the past four and one-half months which the police verified.

When Edward B. first stepped into the police squad room on the second floor of the station he immediately and spontaneously identified the respondent who already was in the squad room with Charles H., the other young Negro found in the apartment upon the initial entry of the police. Edward B. saw the respondent and shouted "That's the boy that did it. Lock him up. There is the one who hit me right here -- he is the one". Up until this point when the identification was made by Edward B., the respondent was still not a suspect, only a witness along with several others brought to the police station for the normal pretrial investigation.

Edward B., the victim of the assault, had testified on direct examination for the People that he was sitting in the kitchen of the basement apartment late in the evening of August 18, 1969 when the respondent entered and asked for Pearl H. Edward B. replied he did not know where Pearl H. was. The respondent then demanded the guitar or $5. Edward B. replied he knew nothing about the guitar or $5; whereupon the respondent angrily grabbed Edward B.'s cane which he found hanging over a closet door and started beating Edward B. on the top of the head with the curved part of the cane handle. Edward B. tried to grab the cane from the respondent as he was being hit. Edward B. testified the respondent had on a white T-shirt, white sneakers, and was "as black as my shoe". Frank H., the deceased came into the room and asked the respondent "Why are you hitting that man on the head?" The respondent angrily turned to the deceased and said "Get on out of here. You have nothing to do with this you're next!" Edward B. testified further that he saw the respondent follow Frank H., the deceased, to his room, but heard nothing. Edward B. then went into the bathroom, wet his T-shirt, put it on his wounded head and lay down on his bed. His next remembrance was several hours later when the first patrolman at the scene, awakened him and William C. and told them Frank H. was dead.

The respondent was brought into a small coffee room off the squad room on the second floor of the police station immediately after Edward B., the victim of the assault, had identified him. The petitioner said to him, "You hear what they are saying. Why don't you tell me what happened?" According to the testimony of the detective and the patrolman first at the scene who also was present in the squad room at the interrogation, the respondent was told his rights and given the Miranda warnings which were read to him from a poster on the wall. These rules recite that the accused has a right to remain silent; that any statement he does make may be used as evidence against him; that he has a right to the presence of an attorney either retained or appointed (Miranda v. Arizona, 384 U.S. 436). His mother was not present in the room, but was sitting outside in the squad room about 10 feet away. Her testimony was that she asked to go into the room with her son but was refused. She also testified she was never given the Miranda warnings nor did she at any time ever hear them being given to her son. The petitioner testified that the respondent, when asked if he understood each Miranda warning, replied or reacted with a shrug of his shoulders. The specific answer as to whether he wanted an attorney present, either paid or furnished, was a shrug of the shoulders. The respondent then proceeded to tell the detective he was down in the basement and had hit Edward B. on the head with a walking cane and placed the rope around the neck of Frank H. The petitioner then advised the respondent that he was going to write down the narrative he had just been told. The respondent signed the written confession after it had been read to him by the petitioner at around 6 or 7 a.m. After reviewing the statement from the respondent, the petitioner placed him under arrest for the assault on Edward B. and the death of Frank H., informed his mother, and took him to the Juvenile Term of the Family Court on the morning of August 19, 1969.

The defense has brought on six preliminary motions for criminal pretrial discovery and inspection. Four of these motions were disposed of by stipulation and agreement of the attorneys for both sides and are not presently at issue in the instant case. The two remaining motions are: 1. A motion to suppress the show-up identification. 2. A motion to suppress the written confession. Both of these motions have a direct bearing on the fact-finding hearing conducted hereunder to determine if the respondent is a juvenile delinquent.

The motion to suppress the show-up identification is denied. This motion is based on three famous unprecedented United States Supreme Court decisions which are usually referred to as Wade hearings. These cases held that a defendant and his counsel should be notified of any impending lineup in a police station (out-of-court identification procedure) and that counsel's presence is a requisite to the conduct of a lineup, absent an intelligent waiver. (United States v. Wade, 388 U.S. 218; Gilbert v. California, 388 U.S. 263; Stovall v. Denno, 388 U.S. 293.)

In so ruling, the court noted that eyewitness identification can be one of the most unreliable forms of proof and may result in wrongful convictions. Any confrontation between suspect and witness is critical and counsel is required. (Stovall v. Denno, supra p. 298.) Clearly, the court has taken a police investigatory tool and endorsed it with the full weight of the constitutional requirements and judicial review. (People v. Cohen, 60 Misc. 2d 706.) In the case at bar, this was not a show-up nor was the respondent placed in any lineup. Hence, it was not required that he be represented by counsel. There was no formal lineup at the station house and no violations of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Nor were the police procedures deliberate or planned. Edward B. was not asked specifically to come to the police station to identify a suspect at the time of his immediate identification of the respondent when he first saw him in the squad room. There were several possible witnesses or persons there whom the police had come into contact with in the course of their normal police investigation which had not yet reached the accusatory stage or had focused upon one supsect. There was an instantaneous or spontaneous identification of the respondent by the victim of the assault, which had occurred a few hours earlier and within the confines of a small room in a basement apartment with adequate lighting. This was no fleeting glimpse of an assaulter in a dimly lit back alley or corridor. There was ample visual observation made at the time the crime was committed for about 15 or 20 minutes, to impress the image upon Edward B.'s mind. The court also finds that the observation by the witness Edward B. was untainted by any improper or suggestive procedures employed by law enforcement officers. No photographs of the respondent were shown to Edward B. for identification purposes and hence, there was no impairment in this regard or detrimental effect upon the witness Edward B's ability to make an identification of the respondent during the course of the trial. (People v. Bryant, 60 Misc. 2d 808.) The respondent at the time of the police station confrontation was not in custody but had volunteered certain information to the police as to his presence at the scene of the crime (homicide) as a witness. As a matter of fact, the respondent was not deprived of his physical freedom when he first made the statement to the police that he was a witness to the homicide. There were no great numbers of police surrounding the house at this time. At the very beginning of the investigation when the respondent was in the basement apartment, his freedom of movement was in no way restrained and he could leave or remain. In short, at this point, there was no custodial interrogation. The police have a right in the course of their normal investigation to check all leads or information given to them. Neither Gault nor Miranda prohibits police investigations, as such, involving juveniles. What is prohibited is compulsory self incrimination. (Matter of Gault, 387 U.S. 1, p. 8; Miranda v. Arizona, supra ; People v. Paulin, 33 A.D.2d 105, 109.) Neither the police nor police counsel was confronted here with any inability of the assault victim to identify respondent from a police photograph or identify him as the perpetrator of the crime upon him, and thus withhold such a valuable disclosure from defense counsel. (People v. Ahmed, 20 N.Y.2d 958; People v. Cohen, supra.) No issue of compulsory self incrimination is presented in this case. The respondent was not compelled to exhibit his person for observation by a prosecution witness prior to trial. It was perhaps fortuitous for the police that the confrontation between the respondent and Edward B. produced an immediate identification, plausible and perfectly proper evidence to use since no organized shape-up was involved. Even if the result for the police produced a suspect (the respondent), it was not produced by fraud, trick, ruse, artifice or cajolery. As was said in United States v. ...

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