In re Jimmy D.

938 N.E.2d 970, 15 N.Y.3d 417

Opinions

OPINION OF THE COURT

Pigott, J.

Appellant, Jimmy D., was 13 years old when his nine-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.

Footnotes

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* 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 nine-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 (63 AD3d 737 [2009]). We granted Jimmy leave to appeal (13 NY3d 843 [2009]) 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 Ct 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 Ct 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 (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 confes sion must be suppressed if it was obtained from a child under the age of 18 after the police ensured by means of deception and trickery that the child’s parents would not take steps to retain a lawyer (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 v Arizona (384 US 436 [1966]), the parent who is present at questioning is able to monitor the interrogation lest the police engage in coercive tactics. In short, “[t]he emotional and intellectual immaturity of a juvenile creates an obvious need for the advice of a guardian . . . at an interrogation from which charges of juvenile delinquency may ensue” (Matter of Michelet P., 70 AD2d 68, 71 [2d Dept 1979]).

However, it does not follow as a matter of law that a child’s confession obtained in the absence of a parent is not voluntary. Neither the Family Court Act nor our precedent interpreting that statute give a child under 16 years the absolute right to the presence of a parent during interrogation. In fact, the Family Court Act expressly contemplates the possibility that the police may be unable to contact the parent of a child in custody, despite “every reasonable effort” (Family Ct Act § 305.2 [4]), or that a notified parent may be unable or unwilling to be present at the location of custody (see Family Ct Act § 305.2 [7]). Moreover, whether a confession was, beyond a reasonable doubt, voluntary is a mixed question of law and fact (see e.g. People v Scott, 86 NY2d 864, 865 [1995]), and is to be determined from the “totality of circumstances” (People v Tankleff, 84 NY2d 992, 994 [1994], quoting People v Williams, 62 NY2d 285, 289 [1984]).

Because voluntariness is a mixed question of law and fact, our review is limited to deciding whether the Appellate Division’s finding is supported by evidence in the record. In the present case, Jimmy and his mother were not so isolated from one another at the child advocacy center as to affect the likelihood that his confession was voluntary. Jimmy’s mother accompanied him to the center, and mother and son had an opportunity to talk there, when they were waiting together alone in the closed-door waiting room. Jimmy’s mother was present during the waiver of his Miranda rights. Both Jimmy and his mother agreed to his being questioned outside his mother’s presence, and there is no evidence that Jimmy asked for her during the questioning; nor were Jimmy’s whereabouts concealed from his mother.

The detective took care to read a version of the Miranda warnings that explains the rights in simple language. Both Jimmy and his mother responded unhesitatingly when asked whether they understood each right waived. Although Jimmy was doubtless tired, there is no evidence that he asked for food or water and was denied it. Finally, nothing in Jimmy’s handwritten confession suggests that it does not express his own recollections.

The detective’s promise of “help” did not give rise to any “substantial risk that [Jimmy] might falsely incriminate himself’ (Family Ct Act § 344.2 [2] [b] [i]). There is no evidence in the record that the detective’s promise would have deceived Jimmy into thinking that if he confessed he would escape unprosecuted or unpunished (cf. People v Holland, 48 NY2d 861, 863 [1979]). Rather, there is evidence in the record that the detective told Jimmy that if he was truthful and told everything that had happened, he would receive psychiatric help or counseling if needed. Jimmy was not offered an incentive to lie; there is no attraction in making a false confession and receiving psychiatric assistance relating to a crime one did not commit.

The dissent, while acknowledging the validity of Jimmy’s initial waiver (dissenting op at 427), relies on a novel theory: that the validity of the waiver was vitiated by police misconduct that occurred after the waiver (id. at 428 [“any representation in the course of the interrogation tending to impair the interrogee’s understanding of the consequences of his or her continuing waiver must be deemed to invalidate the waiver and render the product of consequent interrogation inadmissible”]). The dissent does not suggest that Jimmy was tricked or coerced into his initial waiver, or that Jimmy later invoked his rights and failed to waive them a second time. Nor does the dissent adopt the theory actually advanced by Jimmy—that misconduct following the valid waiver rendered his subsequent confession involuntary. Rather, the dissent suggests that, due to misconduct by the police, Jimmy stopped understanding his rights and thereby unwaived them.

The two cases that the dissent cites in support of this theory, Moran v Burbine (475 US 412 [1986]) and United States v Anderson (929 F2d 96 [2d Cir 1991]), actually contradict it. In Moran, the defendant argued that police misconduct following his valid Miranda waiver—lying to an attorney who sought to intervene in defendant’s interrogation—retroactively vitiated that waiver. But the Supreme Court found that idea “untenable as a matter of both logic and precedent” (475 US at 422). Similarly, in Anderson, the District Court found that postwaiver “trickery” retroactively undermined & Miranda waiver, making it impossible to find that defendant voluntarily waived his rights, but the Second Circuit held otherwise: “Though the ‘trickery’ premise is correct, the district court’s conclusion respecting the ‘impossibility of a waiver’ is not” (929 F2d at 98). The Second Circuit then appropriately addressed whether the postwaiver “trickery” had rendered defendant’s confession involuntary (id. at 100-102). In accordance with Moran and Anderson, we hold that, since Jimmy’s Miranda rights were validly waived and never reinvoked, the issue is voluntariness, not waiver.

We conclude that there is evidence in the record supporting the findings of the lower courts that the presentment agency met its burden of proving the voluntariness of Jimmy’s inculpatory statement beyond a reasonable doubt. This mixed question of law and fact is therefore beyond our further review.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

It is true, as the dissent points out, that her testimony also contains confusing references to a “lawyer,” but there is no basis in the record for inferring that Jimmy was led to believe that he would have to confess if he wanted to be represented by counsel; he had just been told, in unequivocal terms, that he could have a lawyer without charge if he wanted one.