Decided on August 7, 2012
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.
Mazzarelli, J.P., Saxe, Moskowitz, Renwick, Freedman, JJ.
Order of disposition, Family Court, New York County (Susan R. Larabee, J.), entered on or about November 12, 2010, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of sexual abuse in the first and third degrees, and placed him on probation for a period of 18 months, unanimously reversed, on the law, without costs, the order vacated, and the matter remitted to Family Court for new suppression and fact-finding hearings and determinations.
The presentment agency charged appellant, then 13 years old, with acts that, if committed by an adult, would constitute the crimes of sexual abuse in the first and third degrees. In addition to the sworn deposition of the mother of the five-year-old victim, the petition was supported by the deposition of Detective Robert Arbusio. Arbusio testified that appellant gave a statement in which he admitted that he was in a room at his grandmother's house playing video games with the victim and that he and the victim engaged in a sex act.
Appellant moved to suppress the statement. At the suppression hearing, Arbusio testified that after speaking with the victim and his mother, he called appellant's mother and arranged for her to bring appellant to the station house for an interview. He informed her that appellant would be arrested after the interview for sexually abusing the victim. Arbusio further testified that when appellant and his parents arrived, the parents told him that appellant was in the seventh grade, in special education because of a "learning problem," and that he did not take medication. Arbusio recalled that he asked the parents if appellant would understand him, and they said that he would.
Arbusio testified that before he began his questioning of appellant, he read him and his mother Miranda warnings. He said he used a sheet designed for juveniles, with more simple terminology and additional explanatory phrases. He told appellant and his mother that they each had to respond to him independently and had to tell him if they had any questions. He testified that after each warning appellant and his mother individually confirmed that they understood and that neither had any questions.
First, the detective said that he told appellant that he had the right to remain silent, which meant that he did not have to say anything. Next, Arbusio testified, he said that anything appellant said "can and will be used against you in a court of law. That means what you say or write can be used to prove what you may have done." Detective Arbusio further told appellant and his mother that appellant had the right to talk to a lawyer, which meant "that a lawyer can be with you at all times" and may "tell you what the lawyer wants you to do or say"; and that if he wanted a lawyer and could not afford one, "the cost of having a lawyer will be paid by someone else if you cannot afford to pay for it."
Finally, Arbusio testified, he told appellant and his mother that they could refuse to answer any or all questions at any time or choose to have a lawyer during further questioning, adding, "Do you understand that I have to stop talking to you at any time you want to wait for a lawyer?," to which appellant and his mother each answered yes. Arbusio stated that he read to appellant and his mother the concluding paragraph of the juvenile Miranda sheet, which stated, "I have been given my rights as read to me, I understand each of them. I have been asked if I have any questions and I do not have any. I am right now willing to give a statement and to answer questions and to give up my right to have a lawyer present." The paragraph also confirmed that no promises or threats had been made and that appellant understood that he could change his mind at any time.
Arbusio stated that appellant appeared a little nervous as he read him the warnings, but was listening and seemed to understand, because he answered all of the questions. Arbusio further recalled that neither appellant nor his mother ever indicated that they did not understand and that appellant's mother did not ask the detective to explain anything in more detail for appellant. After appellant and his mother signed the Miranda sheet, Arbusio stated, he told appellant that he wanted to talk about what happened at his grandmother's house. Appellant, preferring to speak, rather than write, his statement, said that he engaged in "a sexual act" with the victim that was initiated by the victim.
Arbusio testified that he directed his questions directly to appellant, although appellant's mother appeared to be following the conversation and was crying and upset. The mother did not ask any questions. Arbusio stated that he had explained to her that he would be directing his questions to appellant and that he had directed her not to answer or help during the questioning. However, he stated that he never told the mother that she could not talk to her son at all during the interview.
Appellant's mother testified that her son was in the seventh grade and had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). After having had to repeat kindergarten, he had progressed each year to the next grade. According to his mother, appellant had difficulty understanding tasks at home and homework assignments. Every day, she stated, she had to explain to him how to put on his school uniform and take a shower, drawing a picture of a boy to "show him where to wash well." She stated that sometimes when she asked him to shower or get dressed, he appeared to be completely unfocussed. Further, when she explained something to her son, he was unable to accurately repeat the explanation to her.
Regarding the interview with Arbusio, appellant's mother testified that Arbusio did not ask her if she understood the rights as he was reading them to appellant, and in fact never spoke to her directly or asked her any questions at all. She stated that because he answered the detective with "okay" instead of "yes," she knew that appellant had not understood his rights. However, she was not ...