People v. Cortijo

179 Misc. 2d 178, 684 N.Y.S.2d 435, 1998 N.Y. Misc. LEXIS 624
CourtNew York Supreme Court
DecidedDecember 16, 1998
StatusPublished
Cited by5 cases

This text of 179 Misc. 2d 178 (People v. Cortijo) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Cortijo, 179 Misc. 2d 178, 684 N.Y.S.2d 435, 1998 N.Y. Misc. LEXIS 624 (N.Y. Super. Ct. 1998).

Opinion

OPINION OF THE COURT

Charles H. Solomon, J.

Defendant is charged with murder in the second degree (Penal Law § 125.25 [1]). He allegedly shot his father, Jose Cortijo, to death at his place of employment in Manhattan. The shooting occurred on December 12, 1977. Defendant was not a primary suspect in the homicide until almost 18 years later, when he stated to a New York City probation officer during a presentence interview that he killed his father. This interview was being conducted after defendant was convicted of a narcotics-related felony in New York County Supreme Court. These statements, as well as two subsequent statements made [180]*180to police detectives, are the subject of the instant motion to suppress. A hearing was held before me on defendant’s motion. At that hearing, the People called Probation Officer Urania Vullo and Detectives Frank Colaianni and Dan Danaher. Defendant did not present any witnesses at the hearing. In an oral ruling delivered from the Bench, defendant’s motion was denied in its entirety.

Findings of Fact

Based upon the credible evidence adduced at the hearing, my findings of fact are as follows. Probation Officer Urania Vullo, a 10-year veteran of the New York City Probation Department, has been assigned for the last six years to the Investigations Unit. The function of that Unit is to prepare presentence reports. These reports are used to assist the court in determining the appropriate sentence a defendant should receive after that defendant has either entered a guilty plea or been convicted after trial. Defendants are routinely interviewed for the purpose of preparing the report and the defendant’s statements are thereafter made part of the presentence report. Probation Officer Vullo has interviewed approximately 1,800 defendants in connection with her preparation of presentence reports. She testified that when conducting a presentence interview, she regularly follows the standard procedure set forth in a booklet issued by the Probation Department. Generally, a defendant is asked for a statement concerning the offense of which he stands convicted. Defendant is also questioned about his social history, educational background, and physical and mental health history. Defendants are not asked to comment on any open cases, which are not the subject of the conviction.

In April 1995, Officer Vullo was assigned to conduct a presentence interview of the defendant in connection with a conviction, after a jury trial, for a narcotics-related offense. Because of that, on April 11, 1995, she met with defendant, who was in custody, at 100 Centre Street, in an area commonly referred to as “the pens”. Vullo introduced herself to the defendant and explained the purpose of the interview. She had never met the defendant prior to that date. She told the defendant that she would be asking him many questions and that he was free to refuse to answer those that he did not wish to answer. Defendant was also told that his statements would be made part of the presentence report. Defendant was not read his Miranda warnings by Officer Vullo, as it is not the practice of [181]*181probation officers to advise defendants of their constitutional rights prior to a presentence interview.

Officer Vullo testified that the defendant was very anxious to talk about his drug conviction and initially made a statement with regard to that offense. Vullo then asked the defendant various pedigree questions, including his date of birth and where he resided. Defendant stated that he had been homeless since his father died in 1977. Vullo then asked him questions about his social history and, specifically, about his family. He was asked where he was born and raised. He was then asked about his siblings, followed by questions about his mother. Defendant was then asked, “Where’s your father?” Defendant, looking at Vullo angrily, stated, “I killed my father.” Vullo, thinking she might not have heard defendant correctly, then said, “What?” Defendant repeated, “I killed my father.” Defendant then said, “No, I didn’t kill him, somebody else did.” Vullo asked defendant what happened to that person, and he responded, “I don’t know” and then stated, “No, I killed my father.” Vullo did not ask the defendant for any details, nor did he provide her with any. Rather, Vullo continued with the interview according to standard Probation Department procedure, and completed a presentence report. Defendant was asked about his psychiatric history during the interview. He stated that he was currently taking Navane, a prescription medication and that he had a history of psychiatric problems. Prior to the interview, Vullo had no information regarding the defendant’s father, including whether or not he was alive. Vullo later told her supervisor as well as an Assistant District Attorney about the defendant’s admissions.

Detective Frank Colaianni, a 30-year veteran of the New York City Police Department, testified that on October 12, 1995, he, Detective Newham and Sergeant Casey travelled to Fishkill Correctional Facility to speak to the defendant regarding his father’s death. The defendant, who was an inmate at that facility, was brought into a room where the detectives were waiting for him. Detective Colaianni introduced himself and told the defendant that they were investigating his father’s murder. After they all sat down, the defendant blurted out, “I hear voices. I hear a bang. I shot my father.” This statement was not made in response to any questioning by the detectives. After the defendant made the statement, Detective Newham read him his Miranda warnings from a preprinted form. Defendant indicated that he understood his rights and agreed to speak to the detectives. Both Detective Newham and the de[182]*182fendant signed and dated the form. At no time did the defendant indicate that he wanted to speak to a lawyer. The defendant then stated, “I was on the train that day.” The defendant then told the detectives that he wanted to go back to his cell. A correction officer was summoned and the defendant was taken back to his cell. The detectives then left the facility.

Two and a half years later, on April 2, 1998, Detective Daniel Danaher, a 13-year veteran of the New York City Police Department, and Detective Neil Carter went to Sing Sing Correctional Facility for the purpose of interviewing the defendant in relation to the murder of his father. Detective Danaher was aware of the earlier attempt by other detectives to question defendant. He was also aware of the statements defendant made to Probation Officer Vullo. The defendant, then an inmate at Sing Sing, was produced in an interview room where the detectives were waiting for him. Detective Danaher introduced himself and Detective Carter. He then told the defendant that they were there to ask him a few questions, but first they wanted to advise him of his Miranda rights. Detective Dana-her advised the defendant of his rights from a preprinted Miranda warnings sheet, which he and defendant both signed. The defendant indicated that he understood his rights and said that he was willing to talk to the detectives. No promises or threats were made to the defendant by either detective. At no time did defendant ask for an attorney. Detective Danaher was unaware of defendant’s psychiatric history or whether he was taking any medications at the time of the interview.

After he was advised of his rights, Detective Danaher asked defendant why he killed his father in 1977.

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Related

State v. John Powers
2016 VT 110 (Supreme Court of Vermont, 2016)
Marting v. Crawford & Co.
203 F. Supp. 2d 958 (N.D. Illinois, 2002)
People v. Cortijo
291 A.D.2d 352 (Appellate Division of the Supreme Court of New York, 2002)

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Bluebook (online)
179 Misc. 2d 178, 684 N.Y.S.2d 435, 1998 N.Y. Misc. LEXIS 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cortijo-nysupct-1998.