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In re Daniel H.

November 17, 2009

IN RE DANIEL H., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, APPELLANT.


Order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about January 18, 2008, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts, which, if committed by an adult, would constitute the crimes of burglary in the third degree, grand larceny in the fourth degree (two counts) and identity theft in the third degree, and placed him with the Office of Children and Family Services for a period of 18 months, affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Catterson, McGuire, Moskowitz, Acosta, JJ.

Presentment Agency

The manner in which the 15-year-old appellant was taken into custody and initially questioned does not warrant suppression of the statement he provided after being read his Miranda rights.

The complainant, a children's librarian at the Hunts Point branch of the New York Public Library, had placed her purse inside her office on a chair and left the office, locking the door. When she returned to her office, the glass window to her office had been shattered and items had been thrown around the room. Credit cards, gift cards worth $80, and approximately $25 in cash were missing from her purse. That same day, charges of $1,059 were made on her MasterCard and charges of $562 were made on her American Express Card. The purchases had been made on GameStop.com, and one of the shipping addresses was the apartment where appellant lived. When detectives came to his home, they were informed that he was at school, so they proceeded to find him there.

The investigating detective was unfamiliar with, and failed to follow, the special procedures provided by law for handling juvenile suspects (see Family Ct Act § 305.2[4][b]; 22 NYCRR § 205.20[c]). However, although the detective did not ask either appellant's mother or his grandmother to accompany him to the school, the assistant principal remained in the room during the interview with appellant. They first asked appellant whether he knew the purpose of the visit; he said he did not. When informed that they were police officers, appellant responded that he assumed they wanted to ask about an incident at school in which he had apparently stolen another student's book bag. When further informed that they were there because of "an incident that happened on September 21, the burglary" in the public library, appellant made no response, at which time the investigating detective asked directly whether he had been involved in the burglary. Appellant then stated that he had thrown a bin of books into the window of an office so that he could enter the office, and then took some credit cards. At this point, appellant was placed was under arrest.

The fact that appellant was briefly held in an adult holding cell at the precinct -- without any adult prisoners -- and was questioned in a room other than a designated juvenile interview room, contrary to Family Court regulations regarding the handling of juveniles in police custody (see Family Ct Act § 305.2[4][b]; 22 NYCRR § 205.20[c]), does not warrant suppression of the statement he gave at the precinct. Notably, the office used for questioning appellant was substantially similar to the juvenile room and did not have a coercive atmosphere (see Matter of Rafael S., 16 AD3d 246, 247 [2005]), and appellant was permitted to speak privately with his mother.

While there is no question that the court correctly suppressed the oral statement appellant made at his school based upon the failure to give him Miranda warnings, the law supports the hearing court's conclusion that the written inculpatory statement appellant gave at a police station was sufficiently attenuated from the earlier statement (see People v White, 10 NY3d 286, 291 [2008], cert denied __ US __, 129 S Ct 221 [2008]; People v Paulman, 5 NY3d 122, 130-131 [2005]).

The extent to which appellant was questioned in the assistant principal's office was minimal; in fact, he was really only asked one direct question as to whether he had been involved in the burglary, and there is no indication that anything further in the nature of interrogation took place prior to his being brought to the precinct. Not only was the initial exchange between appellant and the detective brief, but there was a change of location and a break of approximately one hour. The detective did not try to "isolat[e] [appellant] from his family or other supportive adults" (see People v Hall, 125 AD2d 698, 701 [1986]); appellant was able to confer with his mother at the police station before waiving his Miranda rights and giving a statement in her presence. At the precinct, the detective made no reference to the prior statement, but only to the underlying facts of the crime; there is no indication that appellant gave the written statement on constraint of the prior oral statement (see People v Tanner, 30 NY2d 102, 105-106 [1972]; People v Rifkin, 289 AD2d 262, 263 [2001], lv denied 97 NY2d 759 [2002]). Significantly, although the detective initially stated in his testimony that he informed appellant and his mother that he had to give a statement, he thereafter corrected that testimony, stating that he explained to appellant and his mother that he could make a statement if he chose to. Appellant was not handcuffed or restrained while he was questioned in the sergeant's office, and he was free to use the bathroom.

Had appellant been an adult, these combined facts would easily constitute grounds to find the later statement attenuated from the initial questioning (see e.g. People v Parker, 50 AD3d 1607 [2008], lv denied 11 NY3d 792 [2008]; People v Davis, 287 AD2d 376 [2001], lv denied 97 NY2d 680 [2001]), and the issue of attenuation is not appreciably different for juveniles than for adults: in either case it is critical that there be a pronounced break in the interrogation (People v Chapple, 38 NY2d 112, 115 [1975]). In the cases involving juveniles upon which appellant relies, there was no break between the pre-Miranda and post-Miranda questioning (see e.g. Matter of Robert P., 177 AD2d 857, 859 [1991]; People v Gotte, 150 AD2d 488 [1989], lv denied 74 NY2d 896 [1989]), or the juvenile, without informed adult guidance or oversight and without Miranda warnings, was subjected to extensive custodial interrogation, during which he made a full confession, after which he was told that he was required to go to the police station and provide a written statement (see People v DeGelleke, 144 AD2d 978, 979-980 [1988, lv denied 73 NY2d 920 [1989]). We observe that on the attenuation issue, there is no relevance to the detective's failure to abide by Family Court regulations regarding the handling of juveniles in police custody.

We therefore conclude that the Family Court properly determined that the statement appellant gave at the precinct was voluntary and untainted by the statement he made at his school prior to receiving Miranda warnings, and that the dispositional order adjudicating appellant a juvenile delinquent and placing him with the Office of Children and Family Services for a period of 18 months must be affirmed. All concur except Moskowitz and Acosta, JJ. who dissent in a memorandum by Moskowitz, J. as follows:

MOSKOWITZ, J. (dissenting)

I would remand for a new fact-finding hearing. The court should have suppressed appellant's written statement because the later statement was not attenuated from the ...


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