In re Daniel H.

938 N.E.2d 966, 15 N.Y.3d 883

Opinions

OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs, on the ground that the two-Justice dissent at the Appellate Division was not on a question of law (see CPLR 5601 [a]).

Police arrested appellant Daniel H. at his school for the theft of credit cards after he had made an inculpatory statement without being advised of his Miranda rights. Appellant was transported to a precinct, left alone in an adult holding cell, and was again questioned by the same detectives in a sergeant’s office rather than a designated juvenile room. A written inculpatory statement was made by appellant after he and his mother were advised of appellant’s Miranda rights.

Following a hearing conducted on October 31, 2007, the Family Court precluded appellant’s inculpatory oral statement and denied the suppression of his subsequent, inculpatory written statement. The court determined that the written statement was sufficiently attenuated from the earlier oral statement.

Footnotes

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* Appellant was adjudicated a juvenile delinquent for committing acts, which, if committed by an adult, would constitute the crimes of burglary in the third degree, grand larceny in the fourth degree, and identity theft in the third degree.

By a 3-2 decision, the Appellate Division affirmed the Family Court order, finding that the written statement was sufficiently attenuated from the earlier un-Mirandized statement (67 AD3d 527 [1st Dept 2009]). The two-Justice dissent sought to remit the action to Family Court for a new fact-finding hearing. Appellant appeals to this Court pursuant to CPLR 5601 (a).

Jurisdiction for an appeal to this Court predicated upon CPLR 5601 (a) requires that, at the Appellate Division, there be a “dissent by at least two justices on a question of law in favor of the party taking such appeal.” The issue of whether a defendant’s inculpatory statement is attenuated from his prior unMirandized statement presents a mixed question of law and fact (see People v Paulman, 5 NY3d at 129; People v Ryan, 12 NY3d 28 [2009]; People v Conyers, 68 NY2d 982 [1986]). As the two-Justice dissent was not on a question of law, this Court is without jurisdiction to decide the appeal (see CPLR 5601 [a]; Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990 [1988]; Guaspari v Gorsky, 29 NY2d 891 [1972]).

The purpose of the doctrine of attenuation is to determine whether there was a sufficiently “definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning” and is no longer influenced by the taint of the earlier Miranda violation (People v Chapple, 38 NY2d 112, 115 [1975]; see People v Paulman, 5 NY3d 122 [2005]).