People v. Insonia

277 A.D.2d 819, 716 N.Y.S.2d 791, 2000 N.Y. App. Div. LEXIS 12386

Opinion

Cardona, P. J.

Appeal from a judgment of the County Court of Fulton County (Giardino, J.), rendered April 21, 1999, upon a verdict convicting defendant of the crimes of murder in the second degree, manslaughter in the first degree, kidnapping in the first degree, burglary in the first degree, robbery in the first degree, grand larceny in the fourth degree and burglary in the second degree.

On May 23, 1998, defendant, who was then 16 years old, entered the residence of 77-year-old Robert Wittemeyer (hereinafter the victim) with a friend, Ronald Johnson, and alleg[820]*820edly stole the victim’s wallet and car keys. Defendant and Johnson allegedly returned to the victim’s home on May 25, 1998 and stole the victim’s car as well as some money. At that same time, they allegedly assaulted the victim, tying him to a chair and piling furniture and clothes on him resulting in his death.

On May 27, 1998, after obtaining information implicating defendant in the burglaries at the victim’s home, Richard Miles, a detective with the Gloversville Police Department in Fulton County, located defendant and asked him to go to the police station for questioning. Defendant agreed and voluntarily got into Miles’ patrol vehicle. At the station, Miles brought defendant to an interview room where he read defendant his Miranda rights. According to Miles, defendant responded that he understood his rights and was willing to speak without an attorney present. Defendant proceeded to give an oral confession and two written statements admitting his involvement in the burglaries and death of the victim.

Thereafter, defendant was charged in a 10-count indictment and, following a Dunaway /Huntley hearing (see, Dunaway v New York, 442 US 200; People v Huntley, 15 NY2d 72), County Court denied defendant’s motion to suppress his oral and written statements. Defendant was subsequently convicted of murder in the second degree (felony murder), manslaughter in the first degree, kidnapping in the first degree, burglary in the first degree, burglary in the second degree, robbery in the first degree and grand larceny in the fourth degree. He was sentenced to concurrent terms of imprisonment of 25 years to life for murder in the second degree and kidnapping in the first degree, I2V2 to 25 years for manslaughter in the first degree, burglary in the first degree and robbery in the first degree, IV3 to 4 years for grand larceny in the fourth degree and a consecutive sentence of 7V2 to 15 years for burglary in the second degree.

On appeal, defendant contends that his oral and written statements should have been suppressed because the police isolated him from his family and used deceit and trickery to prevent his parents from having contact with him during the interrogation. Initially, we note that a 16 year old is legally an adult (see, People v Page, 225 AD2d 831, 833, lv denied 88 NY2d 883) and the police are under no obligation to allow friends or family to communicate with a competent adult while he or she is in custody (see, People v Sticht, 226 AD2d 838, 840, lv denied 88 NY2d 995). Moreover, “a refusal by the police to allow a parent to see his child [does] not amount to a denial of [821]*821counsel so as to render any subsequently obtained confession per se inadmissible” (People v Townsend, 33 NY2d 37, 42). Nevertheless, suppression of incriminating statements made by a young defendant during questioning may be available where he or she is isolated from supportive adults and “the isolation result[s] from official deception or trickery” (People v Salaam, 83 NY2d 51, 55; see, People v Bevilacqua, 45 NY2d 508, 513-514). Contrary to defendant’s claim, we do not find that the evidence herein establishes that the police employed deceit or trickery in an effort to isolate defendant from his parents.

Defendant’s mother testified that Miles spoke with her at approximately 3:00 p.m. on May 27, 1998 indicating that he was looking for defendant and wished to question him about a burglary. He gave her his card asking her to call him if she found defendant and stating that he would call her if he located her son. She called Miles’ desk phone at approximately 3:45 p.m. and spoke with Donald Van Deusen, another police officer, who told her to hold on and he would look for Miles. She waited on hold until the phone eventually disconnected. Thereafter, she made a number of unsuccessful attempts to call back. She telephoned the station number and told the person who answered that she was looking for Miles. The person indicated that Miles was busy and she asked that Miles call her back. She tried Miles’ desk phone again, without success. She called the station number again and spoke with the dispatcher at the Sheriffs Department to whom the call had been forwarded. She advised the dispatcher that she would keep trying Miles’ desk phone. Her last call to the police station was at approximately 4:45 p.m.

Defendant’s father testified that he received a message from defendant’s mother at approximately 5:45 p.m. on May 27, 1998 relating that she believed Miles had picked up defendant for questioning concerning a burglary. Defendant’s father arrived at the police station at approximately 6:20 p.m. and asked to see Miles. Miles advised that he was questioning defendant in connection with a murder and denied the father’s request to see his son. According to defendant’s father, he told Miles that he wanted to get a lawyer and Miles responded that that would not be necessary since defendant was cooperating nicely. At approximately 6:45 p.m., defendant’s father left the police station and returned home where he telephoned an attorney who agreed to represent defendant. That attorney called the police station sometime after 7:00 p.m.

On the other hand, Van Deusen testified that defendant’s [822]*822mother called Miles’ desk phone sometime between 7:25 p.m. and 9:15 p.m. on May 27, 1998 while he was conducting another interview. He put her on hold and went to look for Miles. When he returned a few minutes later, the phone was no longer blinking and defendant’s mother was not on the line.

Miles was never asked during the suppression hearing whether he told defendant’s mother when he met her on May 27, 1998 that he would call her if he found defendant. Miles testified that he located defendant at approximately 3:45 p.m. on that date and brought him to the police station for questioning. He stated that, after he read defendant his Miranda rights, defendant gave an oral confession. Jeffrey Shepardson, a police detective who took defendant’s written statements, testified that he began interviewing defendant at approximately 4:27 p.m. and that, after administering Miranda warnings, defendant responded that he understood and agreed to speak without an attorney present. Shepardson took the first statement in a question and answer type format. He printed the statement and had defendant recite the first few lines so that he could verify that defendant could read. After making corrections, defendant signed the statement at approximately 5:35 p.m. Upon receiving further information regarding the extent of the crimes, Shepardson asked to speak with defendant again at 6:44 p.m. He again administered Miranda warnings and defendant agreed to be interviewed without an attorney. Defendant’s second written statement concluded at approximately 6:53 p.m.

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People v. Insonia, 277 A.D.2d 819, 716 N.Y.S.2d 791, 2000 N.Y. App. Div. LEXIS 12386 (N.Y. Ct. App. 2000).

277 A.D.2d 819 (People v. Insonia) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Dunaway v. New York
442 U.S. 200 (Supreme Court, 1979)
People v. Salaam
629 N.E.2d 371 (New York Court of Appeals, 1993)
People v. Huntley
204 N.E.2d 179 (New York Court of Appeals, 1965)
People v. Townsend
300 N.E.2d 722 (New York Court of Appeals, 1973)
People v. Bevilacqua
382 N.E.2d 1326 (New York Court of Appeals, 1978)
People v. Page
225 A.D.2d 831 (Appellate Division of the Supreme Court of New York, 1996)
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230 A.D.2d 953 (Appellate Division of the Supreme Court of New York, 1996)
In re Phillip J.
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