People v Dinkins

[*1] People v Dinkins 2006 NY Slip Op 52087(U) [13 Misc 3d 1232(A)] Decided on October 11, 2006 Supreme Court, Kings County Starkey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 11, 2006
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Darryl Dinkins, Defendant.



No.: 1320/04



For the People:

Charles J. Hynes, District Attorney, Kings County

350 Jay Street, Renaissance Plaza

Brooklyn, New York 11201

By: Mark Hale, Esq.

(718) 250-2000

For the Defendant:

The Legal Aid Society

111 Livingston Street

Brooklyn, New York 11201

By: Margaret Martin, Esq.

Jerilyn Bell, Esq.

(718) 237-2000

James G. Starkey, J.

Defendant has been charged with murder in the first and second degree and related weapons charges. He moved to suppress a confession made by him on February 27, 2004 and a [*2]hearing was held on March 20, 22, 27, 28, 29 and 30, 2006. The witnesses called by the prosecution included Detective Joseph Dalton, Detective James McCafferty, Detective James Gaynor, Detective Michel DelHoya, Detective Peter Manceri and Nassau County Police Officer Lashaun Carr. The witnesses called by the defense included Richard Green, Dollie Campbell, F. Richard Hurley esq., and Gary Alexion, esq. The issues presented were (a) whether defendant's confession must be suppressed pursuant to the teaching of Dunaway v. New York,442 U.S. 200 (1979) based on defendant's argument that the confession was obtained while defendant was being illegally detained, (b) whether defendant's confession was made knowingly and voluntarily, ( c ) whether defendant's confession must be suppressed based upon defendant's argument that the police were aware, or charged with the knowledge, that counsel had made contact on defendant's behalf.

On April 18, 2006 the motion was denied based upon the following Findings of Fact and Conclusions of Law.

THE FACTS

On February 27, 2004 Detective Joseph Dalton was working in the 60th Precinct Detective Squad and was assigned to an investigation into the homicide by gunshot of two Transit Authority supervisors in the Coney Island transit system trainyard. At about 10 A.M. he was directed to accompany three other police officers to 1720 Bedford Avenue, in the 71st Precinct to find defendant Darryl Dinkins, an ex-transit worker, as a possible witness.

At 1720 Bedford Avenue he knocked on the door of defendant's apartment and received no answer. He then went to the garage below to look for defendant's vehicle and encountered a man there who, upon inquiry, identified himself as Darryl Dinkins. He then asked defendant if he would mind coming to the 60th Precinct to assist the police in an investigation and defendant said: "Sure."

Defendant then accompanied the police officers upstairs to await transportation to the precinct — not handcuffed or restrained in any way. A short time later transportation [FN1] arrived and defendant — still unrestrained — departed with other police officers for the 60th Precinct. No police officers from the 71st Precinct participated in any way or were at the scene. Detective Dalton, upon his return to the precinct between 11 A.M. and 11:30 A.M., last saw defendant in a room talking with other detectives.

At around 12:30 P.M., Detective James Gaynor — in the company of another detective — joined defendant in an interview room at the 60th Precinct. Detective Gaynor had been told that defendant had been terminated from employment at the trainyard and had had "problems" with one of the deceased supervisors, but was otherwise unfamiliar with how defendant had come to be at the precinct. The two detectives sat at one side of a desk and defendant — still not handcuffed or otherwise restrained — sat on the other side. After obtaining defendant's name, address, date of birth and related information, Detective Gaynor read to defendant the standard [*3]Miranda warnings from a printed form.

Specifically, the detective informed defendant that: (1) he had the right to remain silent and refuse to answer questions; (2) anything he said could be used against him in a court of law; (3) he had the right to consult an attorney before speaking to the police and to have an attorney present during any questioning; (4) if he could not afford an attorney, one would be provided for him without cost and, (5) if he did not have an attorney available, he had the right to remain silent until he had the opportunity to consult with one.

As each right was read, defendant was asked if he understood and each time defendant answered that he did. Defendant was then asked if, having been advised of his rights, defendant was willing to answer questions and he stated that he was. Defendant was then asked to sign the form in a space provided for defendant's signature and he declined, saying, "I will talk to you but I ain't signing nothing."

Defendant was then interviewed for between two and two and a half hours, concluding at about 3 P.M. During the interview defendant stated that he had been an employee of the New York City Transit Authority for about five years and been terminated in November 2003 because he had had problems with supervisors named DeVito, Sacaroff and Sedita. Defendant further stated that one of the reasons for his termination had been a false report made to the police by Mr. Sedita alleging that defendant had tried to run him over with an automobile. Defendant also mentioned that he had consulted counsel in an effort to be reinstated.

Defendant asked more than once what the inquiry was about and was told that two supervisors named Sedita and Patterson had been shot in the trainyard. Defendant then said "I hope you don't think I did that or had anything to do with that." Detective Gaynor responded, "No. I am just looking to account for where you were last night through the evening, along with a lot of other transit employees that were working and not working."

Defendant then stated that the night before he had hung out with friends and gone to a gambling club, a check cashing business and a social club. Defendant further said that he had gotten home between 4:15 A.M. and 4:30 A.M. and did not leave home until the next day. Defendant never refused to answer any questions nor did he request the presence of an attorney or to confer with one.

In the afternoon of the same day, Detective James McCafferty of the Brooklyn South Homicide Unit was directed to the 60th Precinct to assist in the investigation, which he did in various ways until shortly before 7 P.M. At that time his superior in the Homicide Unit told him that the detectives interviewing defendant were not making any progress and that "fresh faces" — including Detective McCafferty and Detective Michael Hopkins — were desired. He and Detective Hopkins conferred with the two detectives who had previously interviewed defendant to learn what he had said, then introduced themselves to defendant. Detective McCafferty stated to defendant that he had been advised of his rights earlier and that they still applied. The detectives and defendant then discussed defendant's family life, past employment, problems with his supervisors and termination. Defendant also repeated what he had said to the first two detectives concerning his activities the night before.

After about one and a half hours, one or both detectives said "I guess you know why you are here" and defendant referred to the shootings, stating that he had not done it, but that he understood that it looked as if he had. Detective McCafferty then spoke for a substantial period [*4]of time to the effect that the facts pointed to defendant and that defendant would look guilty to the people who saw him, including his son, and that he would appear to be without remorse. He also said that if defendant gave the reason for what had happened, there would be a way for the detectives to help him — that his statement would be written down and passed on to the District Attorney.

Defendant then began to cry and stated that he had gone to the trailer where the supervisors were and shot Mr. Sedita as well as Mr. Patterson (with whom he had also had a problem). He repeated how he had begun drinking between 4 P.M. and 4:30 P.M. with a friend, had bought and used cocaine, done some gambling and gone to a social club. He stated that he gotten home and called his wife after 3 A.M., angry, and told her that he was thinking about going to see Mr. Sedita, but she advised against it. He said that he agreed, but found a handgun he had owned for years and then gone to the trainyard where a confrontation preceded the shooting; that afterward he had put the gun and his clothes in a plastic bag and placed it on the street with other plastic bags and that he then went home and slept until awakened by a phone call from a family member. He also said that he was sorry and regretted what he had done.

In the course of the dialogue, defendant drank water, ate food and was brought to the toilet once.

Defendant was then requested to write out his story but refused to do so. Detective McCafferty then requested defendant to repeat what he had said while Detective McCafferty wrote it down and that was done, after which defendant read the statement (as Detective McCafferty also read it aloud) and requested several minor corrections. Defendant then stated that the written version was correct but refused to sign it. He also declined to make a video- taped statement, saying that he had already described what had happened and it had been written down.

Detective McCafferty then informed his supervisors of the statement made by defendant and, at about 2:25 A.M., brought defendant's wife — who had come to the precinct and was waiting in a room nearby — to see defendant. As the two entered the room, defendant hung his head and said to his wife, "I did it."

Meanwhile, at about noon on the previous day, defendant's mother-in-law, one Dollie Campbell, was informed by telephone that defendant had been taken away by the police and she then left her job to return home where she lived near defendant. There, she called a man named Richard Green, a friend who ran a youth program in Crown Heights, and told him that she wanted to find out where defendant was. Mr. Green suggested an attorney named Richard Hurley and a short time later she reached Mr. Hurley by telephone. She told him that she had heard that defendant had been picked up by the police and that she wanted to retain Mr. Hurley to find defendant and find out what was "going on."

Mr. Hurley agreed and, prior to 3:00 P.M. proceeded to the 71st Precinct where he informed the desk sergeant that he was looking for defendant, who was his client and had been arrested. The sergeant checked and told him that there was no Darryl Dinkins in the building. What happened after that, however, is less clear and the evidence is somewhat inconsistent.

On the one hand, Mr. Hurley testified that he responded that he "knew" that defendant had been taken there; that he was then referred to the detectives' offices on the second floor where two detectives — whose names he did not know — told him that the 71st precinct had [*5]"joined" with the 60th precinct in an arrest and that defendant might be there; that upon request, he was allowed to use the telephone and looked up the telephone number of the 60th Precinct; that he then made a call to that number which was answered by an unidentified female; that he told her he understood that defendant was there and that he was told to hold on until, after a long pause, he was told that defendant was not there;[FN2] that skeptical, he told the female that he was defendant's attorney and that if defendant was in fact there, he did not want defendant questioned.

On the other hand, two detectives who were working at the time counsel stated he was at the 71st Precinct — one of whom was in the detective squad offices the whole time — testified that if a suspect or witness is found by police in a different precinct from their own and taken to their precinct, there is no practice or procedure to notify the precinct in which the person had been found; that neither had heard about the homicides in question until much later; that they recalled no visit by any attorney looking for a suspect around that time and that no attorney in their experience had ever called another precinct from their offices in furtherance of such a search. In addition, a Legal Aid attorney named Gary Alexion, who represented defendant at his arraignment, talked with Mr. Hurley — probably twice — within a few days after defendant's arrest, and was intrigued by the possible legal significance of the fact that Mr. Hurley had spoken to the police — even at a precinct other than the one at which defendant had been located. Mr. Alexion would presumedly have been even more intrigued had he been told that Mr. Hurley had also called the 60th Precinct and directed that defendant not be questioned, but Mr. Alexion gave no such testimony — a fact suggesting that he was never so informed. Mr. Alexion asked Mr. Hurley to backtrack and attempt to identify the police personnel with whom Mr. Hurley had spoken, but as far as Mr. Alexion knew, that had never been done.

Thus, while counsel's good faith is not questioned, the inconsistencies and lack of corroboration as to contacts said to have been made with detectives at the 71st Precinct and said to have been made to an unidentified woman at the 60th Precinct generate significant concerns as to whether a timely and successful attempt was made to inform proper police personnel of counsel's involvement in the case. Whatever the variables concerning the attempt said to have been made to reach the 60th precinct, however, one thing is clear: those to whom defendant confessed were completely unaware of counsel's involvement.

Sometime that evening, counsel informed Ms. Campbell of his unsuccessful attempt to locate defendant and received some compensation for his efforts. That ended his connection with the case, except for his conversations with Mr. Alexion a few days later.

CONCLUSIONS OF LAW

1. Defendant's contention that defendant's confession was

obtained while defendant was being illegally detained.

It is well settled that a confession obtained while a suspect is illegally detained must be suppressed. See Dunaway v. New York, 442 U.S. 200 (1979). To avoid that result, the burden [*6]of the prosecution is to demonstrate the legality of the police conduct in the first instance. See People v. Berrios, 28 NY2d 361 (1971). Ultimately, however, the burden of proving by a preponderance of the evidence that he was unlawfully detained rests upon defendant. See People v. Thomas, 291 AD2d 462, 463 (2d Dep't 2002).

In this case, defendant was not formally arrested until after he had confessed, so the merits of defendant's contention rest upon whether, as a practical matter, defendant was in custody prior to his confession. Whether or not that was the case rests in turn on the test set forth in People v. Yukl, 25 NY2d 585 (1969). "The test is not what the defendant thought, but what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." Id. at 589. Here, defendant was asked, not ordered, to accompany police officers to the precinct and, unrestrained, readily agreed. Indeed, at no time prior to his confession was he handcuffed or significantly restrained in any way. While his interrogation occurred over a period of approximately ten hours, it was neither continuous nor — for the most part — accusatory in tone. He repeatedly asked what the inquiry was about and, when told, said that he hoped the police did not think he had any thing to do with the homicide — hardly the conduct of a man who feels he is not free to leave. He then received assurances consistent with his freedom to the effect that many others were also the subject of investigation as to their whereabouts the night before.

In the circumstances described it seems clear that an innocent person in defendant's position would not have reasonably considered himself in custody prior to the time he admitted his culpability.

2. Defendant's contention that his confession was involuntary.

Where a Huntley hearing is concerned, the prosecution has the burden of proving a defendant's confession voluntary beyond a reasonable doubt. People v. Huntley, 15 NY2d 72, 78 (1965). In this case the prosecution has clearly met that burden. Defendant was in no way threatened, intimidated or brutalized nor, as noted above, would a reasonable man innocent of any crime feel that he was not free to leave. Though not in custody, he had also been advised of his rights pursuant to the teaching of the Miranda case and had received food, drink and access to toilet facilities.

3. Defendant's Contention that the confession must be suppressed because the policewere aware, or charged with the knowledge, that counsel had entered the case.

This contention presents more complicated questions. But it is settled that the entry of counsel does not insulate a suspect against questioning without actual notice to his interrogators or circumstances making them chargeable with actual notice. "Where a police officer does not know and cannot be charged with knowledge that the suspect has a lawyer, the officer has no obligation to refrain from asking questions." People v. Carranza, 3 NY3d 729, 730 (2004).

Here, as noted above, the detectives questioning defendant had no actual knowledge of counsel's involvement. Thus, defendant's position turns on whether those interrogating defendant were chargeable with knowledge of that fact. In that regard, defendant correctly notes that if the police have a person in custody they can be properly charged with knowledge of his whereabouts. "In sum, once a person has been taken into custody, the burden is on the police to keep track of him and to establish and maintain procedures which will insure that an attorney representing him [*7]may communicate with him and with the officials responsible for the investigation, without unreasonable delay." People v. Pinzon, 44 NY2d 458, 464 (1978) (Detectives interrogating defendant charged with knowledge of counsel's calls to police

headquarters and attempts to prevent questioning when civilian employees failed to follow instructions and refer such calls to the duty officer.) See also People v. Garofolo, 46 NY2d 592 (1979).[FN3]

The difficulty with defendant's position in that regard is that the burden placed upon the police to establish and maintain such procedures is limited to persons in custody. Indeed, the limitation is understandable given the vast number of people of lesser or greater interest interviewed in and out of station houses by detectives of large police forces, as well as those brought in to view photos and lineups for identification purposes.

Thus, while the police can be chargeable with knowledge of the entry of counsel when a person of interest is not in custody, no case has been cited or found imposing a requirement in such cases to establish and maintain the procedures referred to in the Pinzon and Garofolo cases.

The question then becomes whether, in the circumstances presented here, the detectives interviewing defendant are chargeable with the knowledge of counsel's effort to locate him. The cases relied upon by defendant, People v. Skinner, 52 NY2d 24 (1980) and People v. West,81 NY2d 370 (1993) both involve situations where the police officers who invited the confessions had actual knowledge that the suspect was represented by counsel. In the Skinner case, a detective — after serving an order to show cause for a lineup appearance by defendant and telling him to give the document to his attorney — asked defendant if he wanted to talk about the homicide and "get it off his chest once and for all." People v. Skinner, supra at 27. In the West case the police, aware from their file that three and a half years earlier counsel had represented defendant for a lineup in connection with the same homicide (and had directed that defendant not be questioned in his absence) arranged for an informer to record conversations with defendant — without attempting to determine if he was still represented by counsel. People v. West, supra at 372 and 379.

But more recently, when there was no demonstration of actual knowledge that counsel made contact on behalf of a person not in custody, there was a different outcome. See People v. Bongarzone-Suarrcy, 6 NY3d 787 (2006). In that case, defendant in 1998 came under suspicion of a Brooklyn murder when her former lover committed suicide and left a note stating that defendant had threatened harm, a threat he took seriously since she had told him that she had paid to have her husband killed in 1990. Defendant was questioned in the Highland and Kingston State Police Barracks and given a polygraph examination, which she passed when she stated that she had lied about her husband's murder to scare her former lover. During the polygraph examination, an attorney (who had been contacted by defendant's sister) called the Kingston Barracks and spoke to a police investigator who, in turn, notified a Brooklyn detective investigating the 1990 murder. The attorney said he represented defendant, directed that the [*8]examination cease and asked to speak to her. The detective interrupted the examination and informed defendant of the call, but defendant stated that she did not need an attorney because she had done nothing wrong.

No charges were filed and the matter rested there until 2001 when defendant went to the Highland State Police Barracks and volunteered to the trooper on duty that in 1990 she had paid her brother $20,000 to murder her husband. Further interrogation ensued and at trial defendant urged that the admission of her incriminating statements violated her right to counsel.

In affirming, the court noted that none of the investigators or detectives who were aware of the attorney's 1998 phone call was involved in defendant's interrogation three years later, that the attorney had had no further involvement or contact with the police after the one phone call; that in the regular course of business the Highland State Police had destroyed their closed case file — which might well have reflected counsel's call during the polygraph examination at the Kingston Barracks; that there was no record of the 1998 interview of defendant (or counsel's phone call) in the case file of the Brooklyn South Homicide Squad on examination of the file in 2001 and that the absence of any record was not the result of any bad faith on the part of the police. On these facts, the court held that: "Even assuming that, by virtue of the attorney's call in 1998, defendant's indelible right to counsel attached, the right was not violated by her 2001 interrogation." The court went on to note that "the police who questioned defendant in 2001 neither knew, nor reasonably should have known, of the attorney's entry. That being so, any right to counsel that might have attached in 1998 did not prevent defendant from waiving counsel and speaking to the police in 2001." Id. at 789.

Applying the above principles to the facts of this case, it seems clear that the Sergeant first encountered in the 70th Precinct did all that could be reasonably expected when informed that defendant had been arrested and that counsel "knew" he had been brought to that precinct. It is undisputed that the Sergeant checked, correctly reported that defendant was not there and, when counsel pressed the point, referred him to the detective's offices.

As to what happened there, counsel's testimony is somewhat inconsistent with that of the two 70th Precinct detectives who testified and generates some concern as to its complete accuracy — keeping in mind that even good memories can be affected by the passage of time. In the first instance, as to the testimony quoting the detectives as saying that officers from the 71st Precinct had "joined" with the 60th Precinct in making an arrest, no police officers assigned to the 71st Precinct — or any precinct other than the 60th — participated in any way or were even at the scene when defendant was encountered in the garage by Detective Dalton. Further, prior to 3 P.M., the time referred to by counsel, there had been no arrest of defendant by anyone. That would not occur for another four hours, raising the possibility that any detective who might have spoken thusly was referring to a joint arrest in a different case of someone other than defendant and even — conceivably — with officers from a precinct other than the 60th. If the detectives had suggested a different precinct and counsel had called there, it would not be the first time that a person — testifying years later — confused one number with another. Further, counsel's testimony that he looked up the telephone number of the 60th Precinct and called that number — even taken at face value — does not establish that he accurately read and dialed the correct number or that, if he did, that he did not (as sometimes occurs) reach a wrong number nevertheless. There was no testimony that he was told that he had in fact reached the 60th [*9]Precinct, as opposed to a different one, no identification by name of the female said to have been reached or even as someone somehow connected with the 60th Precinct.

In light of the above, the evidence does not warrant the conclusion that the detectives questioning defendant knew or were chargeable with the knowledge that counsel had become involved in the case. Nor is it necessary to resolve the question of whether, if indeed counsel had reached an unidentified person at the 60th Precinct on the telephone inquiring about someone thought to be in custody, the detectives talking to defendant — who was not in custody and not subject to the rule of the Pinzon and Garofolo cases — were chargeable with the knowledge that counsel had become involved.

But as noted above, counsel informed the police at the 71st Precinct that defendant had been arrested and it seems a fair inference that he continued to convey that impression to the female to whom he is said to have spoken at the 60th Precinct. If indeed that had occurred, it would presumably have triggered an inquiry with the desk sergeant and detectives (as well as a check of any other place where an arrest would be recorded) concerning whether an arrest had occurred and the answer at 3 P.M. would correctly have been negative: no one named Darryl Dinkins had been arrested.

It is conceivable that one way or another such an inquiry made to the detective squad would have also yielded the information that defendant — though not under arrest — was there. But that is far from certain and it is settled that, in certain circumstances, reliance of counsel on erroneous information can seriously prejudice the contention that the police should be charged with knowledge of counsel's entry. See People v. Carranza, 3 NY3d 729 (2004) (Attorney notified District Attorney and the State Police of his entry and that defendant exercised his right to be silent; letter ineffective when defendant in custody of Newburgh Police.) A similar ruling resulted when misinformation was conveyed to the police by a defendant. See People v. Lucarano, 61 NY2d 138 (1984) (Police ruled entitled to rely on defendant's incorrect statement that he was not represented by counsel in an unrelated case.) Thus, if the point were reached, it is questionable whether defendant would be entitled to prevail in that regard as well.

The clerk is directed to send copies of this decision to counsel for the defendant and to the District Attorney.

James G. Starkey

J. S. C. Footnotes

Footnote 1:Detective Dalton did not transport defendant himself because he was driving his privately owned vehicle and did not want to transport a stranger in it. The request for transportation was ultimately answered by a unit with borough wide responsibilities based at — but not a part of — the 67th Precinct.

Footnote 2:No evidence was presented suggesting that the desk officer noted defendant's arrival in the 60th Precinct in the Command Log. But if it was not, the Patrol Guide of the New York City Police Department does not list witnesses, attorneys for lineups or fillers for lineups as persons whose entry should be recorded.

Footnote 3: "We now make explicit what was implied in Pinzon: that good faith efforts are made to locate a defendant who is taken into custody does not absolve the police of their responsibility if their internal procedures are inadequate to keep track of those against whom the restraining hand and accusing finger of the state have come to rest." Id. at 600-01.