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In the Matter of Jimmy D.

October 26, 2010

IN THE MATTER OF JIMMY D., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, APPELLANT. PRESENTMENT AGENCY, RESPONDENT.


The opinion of the court was delivered by: Pigott, J.

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

Appellant, Jimmy D., was 13 years old when his 9-year-old cousin reported to family members that Jimmy had sexually abused her. Jimmy's mother took both children to a hospital, where the police were called. A detective from the special victims' squad arrived and arranged for Jimmy, his mother, his cousin, and the cousin's mother to be taken to a child advocacy center.

After initially being placed in separate rooms, Jimmy and his mother sat together in a closed-door waiting room while the detective interviewed the cousin and her mother. The girl described an incident of sexual abuse that had occurred earlier that evening. She added that she was afraid of Jimmy because he had sexually abused her one afternoon four months earlier.

The detective took Jimmy and his mother to a juvenile interview room, where she explained the allegations against him and read Miranda warnings to Jimmy in English and to his mother in Spanish, according to their preferences. The version of the Miranda warnings that the detective read to Jimmy, designed for use with juveniles, explains each of the rights in simple language. Each time one of the rights was stated, Jimmy responded, without hesitation, that he understood the right; the same was true of his mother. Jimmy's mother also reread the warnings herself and both Jimmy and his mother signed the Miranda waivers.

The detective asked Jimmy's mother, in Spanish, for permission to speak with him alone, adding that children sometimes do not feel comfortable talking to a detective in front of a parent. The mother did not respond immediately, but after Jimmy consented to talk with the detective alone, the mother agreed, and left the juvenile interview room.

The detective told Jimmy that he should tell her exactly what had happened, adding that, if he did so, he would get "some help," if he needed it. As the detective later recalled the conversation, she indicated that he would be able to get psychiatric or counseling help, if necessary.*fn1 Faced with his cousin's accusations regarding the earlier incident, Jimmy admitted to sexual contact with his cousin. The detective told Jimmy to write what he had done in his own words, gave him pen and paper, and left the room. In a handwritten statement, which he composed while alone in the interview room, Jimmy admitted to a series of sexual contacts with his 9-year-old cousin.

Jimmy and his mother were reunited, and he read his confession to her. At this point, according to Jimmy's mother, she understood her son to say that the detective had told him that she would help him only if he wrote a statement admitting to sexual conduct. The mother and the detective exchanged words, with the detective insisting that she had simply told Jimmy to write down in his own words exactly what he had done. Jimmy was then arrested.

A juvenile delinquency petition was filed in Family Court, supported by a sworn statement of Jimmy's cousin. When the presentment agency gave notice that it intended to introduce his confession, Jimmy moved to suppress the statement. Following a suppression hearing, Family Court denied the motion.

Following a fact-finding hearing, Family Court ruled that Jimmy had committed acts that, if committed by an adult, would have constituted the crimes of first-degree criminal sexual act, third-degree criminal sexual act, sexual misconduct, second-degree unlawful imprisonment, second-degree course of sexual conduct against a child, attempted first-degree sexual abuse, and attempted third-degree sexual abuse. Family Court adjudicated Jimmy a juvenile delinquent and placed him on probation for 18 months, conditioned on cooperation with sex offender counseling.

At the Appellate Division, Jimmy argued, among other things, that the presentment agency had not met its burden of proving the voluntariness of his confession. The Appellate Division modified Family Court's order by dismissing the sexual misconduct and unlawful imprisonment counts, but otherwise affirmed, rejecting Jimmy's voluntariness challenge. We granted Jimmy leave to appeal and now affirm.

When a police officer takes a child under the age of 16 into custody for juvenile delinquency, the officer must "immediately notify the parent or other person legally responsible for the child's care, or if such legally responsible person is unavailable the person with whom the child resides, that the child has been taken into custody" (Family Court Act § 305.2 [3]). The child must be advised of his Miranda rights and, if the parent or other person in loco parentis who was notified of the arrest (henceforward "parent") is present, that person must be similarly apprised (Family Court Act § 305.2 [7]).

Recognizing that special care must be taken to protect the rights of minors in the criminal justice system, New York courts carefully scrutinize confessions by youthful suspects who are separated from their parents while being interviewed. In People v Bevilacqua, we held that the "continuous, unusual, and deliberate isolation" of an 18-year-old from potential avenues of assistance from his family or other supportive adults required suppression, as a denial of the right to counsel (People v Bevilacqua, 45 NY2d 508, 514-515 [1978]; see also People v Kern, 149 AD2d 187, 217 [2d Dept 1989]; People v Ventiquattro, 138 AD2d 925, 929 [4th Dept 1988]). Similarly, in People v Townsend, we ruled that a confession must be suppressed if it was obtained from a child under the age of 16 after the police ensured by means of deception and trickery that the child's parents would not take steps to retain a lawyer (People v Townsend, 33 NY2d 37, 41-42 [1973]).

In light of these statutory and common law principles, we reiterate that, when a parent is present at the location in which a child under the age of 16 is being held in custody, the parent must not be denied "an opportunity to attend [the] custodial interrogation" (People v Mitchell, 2 NY3d 272, 275 n 11 [2004] [emphasis added]). In practical terms, this means that the parent of the child has the right to attend the child's interrogation by a police officer, and should not be discouraged, directly or indirectly, from doing so. The better practice for the interviewing officer or detective is to inform the parent that the parent may attend the interview if he or she wishes. Of course, a parent may choose not to be present when a child is being interviewed, but the police should always ensure that the parent is aware of the right of access to his or her child during questioning. If a parent is asked to leave, the parent should be made aware that he or she is not required to leave.

The advantages of having a parent present during custodial interrogations are many. A parent may help a child understand the Miranda warnings, so that the child can consciously and voluntarily choose whether to waive or to exercise his constitutional rights to remain silent, to have an attorney present at his questioning, and to have an attorney provided for him without charge if he is indigent. As we have noted, juveniles charged with delinquency may not fully "understand the scope of their rights and how to protect their own interests. They may not appreciate the ramifications of their decisions or realize all the implications of the importance of counsel" (Mitchell, 2 NY3d at 275). If the child chooses to waive his rights under Miranda, the parent who is present at questioning is able to monitor the interrogation lest the police engage in coercive tactics. In short, "[t]he ...


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